Director of Public Prosecutions v Croughan
[2015] VCC 2016
•16 April 2015
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication
AT MELBOURNE CRIMINAL DIVISION
Case Nos. CR-13-02387
CR-14-00723
DIRECTOR OF PUBLIC PROSECUTIONS
v
BRADLEY CROUGHAN AND ASHLEY GERBING
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JUDGE: Jordan
WHERE HELD: Melbourne
DATE OF HEARING: 23 March 2015
DATE OF SENTENCE: 30 March 2015, first revision 16 April 2015
CASE MAY BE CITED AS: DPP v. Croughan and Anor
MEDIUM NEUTRAL CITATION: [2015] VCC 2016
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited: Sentencing Act 1991, Crimes Act 1958
Cases Cited: R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP For the Accused Croughan For the Accused Gerbing | Ms N. Smith Mr D. Miglone Ms H. Spowart | Office of Public Prosecutions Melinda Walker Victoria Legal Aid |
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 9134 (Prepared by Spark and Cannon)
171533 PP.1-13
HIS HONOUR:
1Ms Spowart, I received by email that reference that you sent to me, thank you, after the plea had concluded.
2MS SPOWART: Yes.
3HIS HONOUR: You want to rely on that as part of the material?
4MS SPOWART: Yes, I'll tender that, Your Honour. I've got - - -
5HIS HONOUR: All right. I'll mark that as Exhibit 3 on the Gerbing plea.
6MS SPOWART: It's a reference from Damon Linnell from InstallEX.
7HIS HONOUR: Thank you very much. You received that, Madam Prosecutor?
8MS SMITH: Yes, Your Honour.
9HIS HONOUR: In terms of the pre-sentence detention under s.18 of the act, has there been agreement about the appropriate periods there?
10MS SMITH: There has, Your Honour.
11HIS HONOUR: In relation to Mr Croughan?
12MS SMITH: 143.
13HIS HONOUR: That's agreed, Mr Miglone?
14MR MIGLONE: Yes, Your Honour.
15HIS HONOUR: And Mr Gerbing?
16MS SMITH: Seven.
17HIS HONOUR: And that's agreed?
18MS SPOWART: Yes, Mr Gerbing has been in custody for seven days, yes.
19HIS HONOUR: The compensation orders that are sought in favour of Cecilia Gatwich, they're both consented to?
20MR MIGLONE: I'm not making any submissions on it, so not opposed, Your Honour.
21MS SPOWART: Not opposed.
22HIS HONOUR: In relation to Mr Gerbing, there's a 464ZF Crimes Act - that's consented to, I think you said the other day.
23MS SPOWART: Again, not opposed, Your Honour.
24HIS HONOUR: Not opposed, all right. Mr Croughan, you can remain seated.
25Mr Bradley Croughan, you pleaded guilty to theft of certain items on 30 May 2013 stolen from a schoolgirl in Frankston. You pleaded not guilty to armed robbery in relation to the circumstances of that theft. You were tried and convicted of armed robbery on 20 February 2015. The maximum penalty for armed robbery is 25 years' imprisonment.
26Consistent with the jury's verdict, the circumstances of your offending are that an 18-year-old schoolgirl was sitting at a bus stop at about 6.30 a.m. in the morning of 30 May 2013. You and Mr Ashley Gerbing came up from behind her. You grabbed her hands and held them behind her. You produced a large knife, some 30 centimetres in length which you held close to her face. You threatened to kill her if she called the police and added you knew where she caught the bus every morning. Mr Gerbing grabbed her schoolbag as well as her handbag and iPhone and ran off. She ran after you in an attempt to retrieve her stolen items and then called the police on triple zero.
27Other lay evidence was that you changed your clothing and haircut later that
day. You were interviewed by police on 4 June 2013 and admitted the theft only. Some of the complainant's belongings were recovered. Her handbag, wallet and about $450 in cash and some other items were not recovered.
28The seriousness of your offending is obvious in several respects. The attack was on a female who was alone. It was very early in the morning in an area where no other members of the public were likely to be. There were two of you. You applied physical force to her. You attempted to disguise your identity by changes to clothing and hairstyle.
29It could be said that the complainant was a soft target for two male robbers. I accept in your case there is an absence of remorse. The fortitude of the complainant in seeking to retrieve the stolen items does not diminish the fact that you subjected her to a very frightening, violent experience. I do not consider her determination to pursue you lessened your offending.
30No victim impact statement was provided to the court. There is simply a lack of evidence concerning the effect of your offending on this young woman. You have admitted your criminal history. At 29 years of age, it is very extensive. It commenced in the Children's Court in 2000 when you were 15 years old. Regular appearances for adult offending occurred up until August 2014. There is a long history of dishonesty offences. Virtually every year has seen you before the courts for thefts, burglaries, as well as violence offences. You have served a number of terms of youth training, as well as adult prison. There is a history of failed dispositions. You have had Community Based Orders that you breached, had a suspended sentence restored, as well as other forms of punishment over the years. There is only minor drug offending.
31This armed robbery occurred only 22 days after you were released from prison. Serious subsequent offending has also occurred on more than one occasion, including violence. You admitted to a stabbing offence that
occurred in October 2013. These of course do to aggravate your offence and increase your sentence but they are relevant to any question of leniency, risk of recidivism, prospects of rehabilitation and specific deterrence.
32Dealing with personal matters, your intellectual disability and mental impairment were submitted as requiring leniency in your case. You have an extremely low IQ of 62. I will deal with these matters later.
33Reports tendered on your behalf were from Gina Cidoni, consultant psychologist, dated 18 February 2015 and from Peter Stanislawski, psychologist, dated 21 January 2008. Mr Stanislawski's report principally concerned a psychological assessment with respect to personality assessment inventory testing, PAY, and other PAY assessment. Attention deficit hyperactive disorder (“ADHD”), from early years was noted and a history of drug use and alcohol problems was also referred to. A good deal of dysfunctional home life, including sexual assault and difficulties at school is described in the report.
34The psychologist thought your thinking may be impaired due to accelerated thought processes and it would limit your ability to comprehend and process information. Impulsivity and other symptoms of ADHD were likely to have been relevant, particularly in past years, and anxiety is also referred to. This report is quite dated now of course but it referred to past behavioural and environmental factors being relevant to some of your offending back at that time.
35Gina Cidoni's report referred to the diagnosis of ADHD in your school years and trauma-related anxiety as well as substance abuse. After testing, she recorded that you had a full-scale IQ of 62, placing you in the extremely low range. You have significant deficits in adaptive behaviour, as well as learning difficulties. In other words, you have an intellectual impairment, psychological disturbance, as well as anxiety, depression and other mental health issues.
36Exposure to drugs and alcohol has added to your organic intellectual disability and it is noted that you are experiencing hardship in prison. In view of your criminal history and the reports that I have received, it could only be said that your prospects of rehabilitation are very limited in spite of you only being 29 years of age.
37Your counsel pointed to a number of matters that you are entitled to have taken into account in mitigation. I take into account that you pleaded guilty one aspect of the armed robbery, namely the theft, but you decided to contest the principal offence and thus your plea is of little relevance. Your counsel submitted that an immediate custodial sentence was warranted in the circumstances, together with a Community Corrections Order (“CCO”). The Crown submitted that immediate imprisonment with a nonparole period was the appropriate disposition given the seriousness of your offending.
38I accept defence counsel's submission that the principles in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (“Verdins”) apply to your case. I consider
that your impaired mental functioning which is both organic and temporary, in the sense of your very limited IQ coupled with your substance abuse, there are a number of aspects of that impaired functioning that are relevant to sentencing in your case.
39I consider that it reduces the moral culpability of your offending. While a precise diagnosis of your problem is not required, you are very limited in terms of your intelligence and accordingly your appreciation of any moral culpability. The condition thus in my opinion must have a bearing on this sentence and it must be relevant to the question of specific deterrence in your case.
40It has been mentioned also that your condition could mean that time in prison would be more difficult for you than a person in normal health. There are additional risks to you from being in prison due to your mental health. There is merit in these submissions in your case.
41I thus find that there is a realistic connection between your mental condition and the commission of your offence. This is also relevant to general deterrence, in that you are a less appropriate example for the community in that context than some other offenders.
42As well as those matters personal to you, I must take into account other relevant sentencing considerations. General deterrence still must be given due weight in a case such as this involving a very serious crime committed on a young female alone in public. The community cannot and will not tolerate offending which so seriously compromises a schoolgirl's right to feel safe, waiting for her bus to go off to school in the morning in suburban Melbourne. The message must be clear and consistent that the community's denunciation of your conduct is manifested by just punishment. I must protect the community from any protection of this type of offending and seek to deter you and others from further offending.
43With respect to armed robbery, sentencing purposes require the goals of deterrence and community protection of women alone in the street to have particular force. It has been said general deterrence is the dominant purpose with respect to armed robbery. Rehabilitation, while relevant, ought to be subordinated to the requirements of protection of the community and deterrence. Your rehabilitation prospects are limited and certainly do not displace deterrence as the dominant purpose in the circumstances of your offending.
44I have considered all the circumstances of the offence and personal to you I arriving at the appropriate sentence. In view of your previous criminal record and the many dispositions in which it could be said leniency was shown to you which proved ineffective, I do not accept that a CCO is an appropriate disposition, even accompanying immediate imprisonment in terms of sentencing purposes.
45Section 5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the court has considered the purposes of sentencing and whether such purposes can be achieved by a CCO with conditions. In my opinion, in view of the seriousness of this offence and your prior criminal history, there is no alternative in your case but to impose a sentence of imprisonment with a nonparole period without a CCO.
46I will now direct some sentencing remarks to your co-offender, Mr Ashley Gerbing, before passing sentence on you. You can remain seated, Mr Gerbing.
47Mr Ashley Gerbing, you have pleaded guilty to one charge of robbery. The maximum penalty for this offence is 15 years' imprisonment. The Crown has accepted your guilty plea to robbery. Details of the admitted facts relied on in the prosecution summary are set out in Exhibit A. I sentence you for the lesser offence of robbery on the basis of the Crown concession you had no knowledge of the knife used by your co-offender, Mr Croughan.
48You and he came up behind the complainant, a schoolgirl waiting at a bus stop to go to school at 6.30 am. There was no-one else around. Mr Croughan grabbed the complainant by the wrists, dragged her arms behind her back and then held her arms there. While that was being done, you ran off with her schoolbag and her handbag. A number of the stolen items were not recovered. In my opinion, your offending was serious. Your criminal conduct involved frightening violence towards a female schoolgirl sitting on her own. She was forcibly restrained by Mr Croughan while the robbery took place. It was at a time and a place where no-one else might be expected to be. She was a soft target for two male offenders in the circumstances of this case. Her bravery in attempting to retrieve her stolen items does not reduce the fact you caused this schoolgirl to go through a very frightening violent experience. She has not provided a victim impact statement. That just means there is a lack of evidence of impact before the court. Not all her items have been recovered, including her handbag, wallet and about $450 in cash.
49I accept your plea as a mitigating factor. You have spared the complainant a longer trial. You have spared the community the time and expense of a trial for your particular offending. I accept your plea shows some remorse. You have admitted your criminal history which discloses appearances commencing in 2006. Assaults and recklessly causing injury have been committed in the past. Your last appearance was in June 2012 and included dishonesty and violent offending. Importantly, you were placed on a CCO for 12 months, commencing on 28 June 2012. That community corrections order was current when this offending occurred. It is an aggravating factor relevant to sentencing and relevant to the submission made by your counsel about the appropriate disposition.
50It is worth noting that the community corrections order included the Magistrates' Court imposing a number of conditions in addition to the statutory terms. Those conditions included 120 hours of community work, supervision by the secretary, treatment and rehabilitation with respect to drug abuse and dependency, as well as a mental health assessment.
51I have been informed by the Crown and it has been admitted by you that in addition to this robbery, there were six other offences committed during the currency of that CCO. They are not prior convictions. They were dealt with after the robbery in May 2013. They are relevant at least to the question of leniency, your attitude to a non-custodial disposition such as a CCO with conditions, rehabilitation and risk of recidivism.
52You have been shown leniency in the past. You have received suspended sentences and community based orders. You have had a suspended sentence wholly restored. You have also served terms of imprisonment. You have breached the trust shown by lenient dispositions in the past.
53Turning to personal matters, you are 28 years old. You have used ice daily and at times have had no real home. You were unemployed and estranged from your own young family as well as extended family at the time of the robbery. Exhibit 1 on the plea outlines some of your present circumstances that include resumed family contact and you being in a relationship. Tendered on your behalf were three lay references from your mother, Debra Gerbing; your grandmother, Bronwyn Urbano and Tara James (Exhibit 2). Your mother described the influence drugs have had on your life and your resumption of family contact. She described you were no longer on drugs and are remorseful. Your grandmother also describes your remorse, how your drug problem was a thing of the past and you were now in a relationship. You were also back in contact with your own family.
54Tara James describes your relationship with her and your attitude to your offending. Exhibit 3 also refers to some labouring employment you commenced last month.
55Given there is some remorse, I consider you do have some prospects of rehabilitation but they are guarded. Evidence about your remorse must be tempered by the fact that you have reoffended after this robbery. Your counsel pointed to a number of matters that you are entitled to have taken into account in mitigation. These included your age and your plea of guilty. The offence was unplanned and no physical injury was caused.
56It was submitted that your offending was at the lower end of the scale for robbery. I do not agree. Force was applied to this schoolgirl. She was held by your co-offender while you stole her bags. She had no-one in the vicinity at the time of the offending. The physical force applied to the young complainant facilitated you taking her bags. Considering all the circumstances, this is not at the lower end of the scale of a robbery.
57Your counsel's submission was that a CCO with conditions was the
appropriate disposition. You were on such an order from the Magistrates' Court when you breached it by this offending in spite of additional conditions that had been imposed. Your counsel submitted that a CCO without an immediate custodial sentence was appropriate. The Crown submitted that a CCO was within the range.
58As well as the matters personal to you, I must take into account other relevant sentencing considerations. General and specific deterrence must be given weight in the sentence. No professional reports have been tendered on your behalf by way of analysis of your psychological or psychiatric condition and your current drug usage.
59It has been said in an offence such as yours that the community cannot and will not tolerate offending which so seriously compromises a schoolgirl's right to feel safe, sitting alone at a suburban bus stop waiting to go to school, nor will it tolerate offending that can have some consequences for such a victim. The message must be clear and consistent that severe punishment will result, given the circumstances of your offending. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must protect the community from any repetition of this type of offending and consider deterrence to both you and the general community.
60Defence counsel's submission that a CCO without imprisonment is the appropriate disposition calls for a closer look at your criminal record. You received a Community Based Order in 2006 at 20 years of age for violent offending. You failed to comply with it and received a term of imprisonment wholly suspended at age 21. You were given a further wholly suspended sentence in 2010. You failed to comply with that order. You were given a CCO in 2012 for dishonesty and violence offences that you breached with this robbery. It is admitted you also breached it with six other offences. For these, you have received a further CCO in June 2014.
61The appropriateness of another CCO for this serious violent offence on a defenceless young woman needs to be looked at carefully. The thrust of the submission was directed to rehabilitation and progress you have said to have achieved more recently in your life and your personal circumstances.
62Sentencing purposes for robbery require the goals of deterrence and community protection of women alone in the street to have particular force. It has been said general deterrence is the dominant purpose emphasised in robbery offences. Your rehabilitation is of course relevant but in these circumstances it ought to be subordinated to the requirements of deterrence and community protection. Your rehabilitation prospects are guarded in my view and are not so compelling that they displace deterrence as the dominant purpose of sentencing.
63I have considered the matters raised by your counsel and the purposes of sentencing. Those purposes include the need to deter others from further offending of this type, preying as it does on a young female out on her own. I have considered all the circumstances of the offence and of the offender in arriving at the appropriate sentence. I have considered s.5(4C) of the Sentencing Act 1991. I do not consider the sentencing purposes can be achieved by anything other than an immediate custodial sentence.
64The offence is serious. You were on a CCO with conditions when you offended. I have been referred to the principles in the case of Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (“Boulton”) and I have considered those principles and the guidelines helpfully set out. I do not accept that the purposes of sentencing can be achieved by giving you another CCO for this offending.
65I have just been given a note. I will just leave the Bench for a couple of moments.
66(Short adjournment.)
67HIS HONOUR: Madam Prosecutor, just before I impose sentences, in relation to the Indictment for Mr Croughan, do I need to impose a sentence to clear the Indictment on the lesser charge of theft that he pleaded guilty to or not?
68MS SMITH: No, Your Honour.
69HIS HONOUR: The sentence on the armed robbery suffices to clear the Indictment?
70MS SMITH: It does, Your Honour. All the elements on the theft charge are contained in the armed robbery charge entirely. It's wholly subsumed by the armed robbery charge.
71HIS HONOUR: Mr Miglone, did you want to say anything about that?
72MR MIGLONE: No, I agree entirely with that, Your Honour.
73HIS HONOUR: I will now pass sentence on you, Mr Croughan. Would you please stand.
74Mr Croughan, I sentence you on the armed robbery to four years and six months' imprisonment with a nonparole period of three years. I declare 143 days' pre-sentence detention pursuant to s.18 of the Sentencing Act. I make a compensation order that is not opposed in favour of Cecilia Gatwich in the sum of $450. You can sit down now.
75I now pass sentence on you, Mr Gerbing. Please stand.
76Mr Gerbing, I sentence you to 18 months' imprisonment with a nonparole period of 12 months. I declare seven days' pre-sentence detention pursuant to s.18 of the act. I will make a compensation order that is not opposed in favour of Cecilia Gatwich in the sum of $450.
77I make an order you have not opposed pursuant to s.464ZF of the Crimes Act
- I need to explain this to you, Mr Gerbing - you are required pursuant to that order to provide a forensic sample by way of saliva from a scraping in your mouth to the appropriate officer. I make that order that has been sought by the Crown and not opposed by you for reasons that include the seriousness of the offence and that the order is not opposed and that the granting of the order is in the public interest.
78I need to inform you, Mr Gerbing, that if at the time of the request for that saliva sample you do not consent to the taking of such a mouth scraping under the supervision of an authorised member of the police force, that member may use reasonable force to enable that forensic procedure to be conducted.
79Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of two years and six months' imprisonment with a nonparole period of 18 months.
80Would you remove both gentlemen, please.
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