Director of Public Prosecutions v Dawes

[2023] VCC 95

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01603

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON DAWES

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Geelong
DATE OF HEARING:	27 January 2023
DATE OF SENTENCE:	2 February 2023
CASE MAY BE CITED AS:	DPP v Dawes
MEDIUM NEUTRAL CITATION:	[2023] VCC 95

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Robbery – Bugmy principles enlivened – Significant drug addiction in the context of early depravation – Relatively poor prospects of rehabilitation – Institutionalised offender – Aboriginal offender – Relevant criminal history – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 75; Sentencing Act 1991 ss 6AAA, 18, 44.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:                  A period of imprisonment for 12 months and following the period of imprisonment to be placed on an 18 month community correction order.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	The Office of Public Prosecutions
For the Accused	Mr T Sullivan	Stary Norton Halphen

HIS HONOUR:

Introduction

1Jason Dawes, you have pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment.

2You have also admitted your prior criminal history.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of offending, you were 49 years of age and living in Norlane.

5Anthony Sheen, the victim, was aged 64 at the time of the offending, and he lived at an address in Corio.

6You and Mr Sheen had known each other for about seven to eight years.

7On 2 January 2022, the victim was at home, sitting in the lounge room in his wheelchair. His dog was with him. Two associates, Jeremiah Moloney and Tenneale Dean, were inside a caravan located on the front lawn of the property.

8At about 2:15pm, the victim heard a knock on the front door. He said ‘come in’. you and an unknown male entered the premises and both sat down on a couch in the lounge room. You then went to the kitchen.

9A short time later, you returned to the lounge room with a glass of water. You approached the victim on his right side and said ‘give me all your money’. The victim did not know what to do, and was scared.

10The victim said that his wallet ‘is in the bedroom with $100 in it’. You took the dog outside and then went to the front bedroom and began going through the cupboards. You filled a bag with alcohol and other items. You also took a black bag containing various cards, the victim’s driver licence and two $50 notes. The second unknown male stood in the lounge room in front of the victim while this was happening.

11The unknown male then put the bag with the property outside. You said to the victim, ‘The last time I came here you laughed at me. Who’s laughing now’. You and the unknown male then left the premises with the property. (Charge 1 – Robbery)

12The victim called out, ‘Jerry, come in, hurry’. Mr Moloney ran from the caravan and into the lounge room. The victim told Mr Moloney that he had just been robbed by ‘Dawesy’. The victim gave Mr Moloney his bank card details to cancel his cards. Mr Moloney called triple zero. Mr Maloney stated that he had not heard or seen anything from inside the caravan.

13At about 2:30pm, police attended the premises. They took statements from the victim and Mr Moloney.

14On 26 January 2022, you were arrested in Norlane. You declined to be interviewed by police about the offending.

Nature and gravity of the offending

15Robbery is an inherently serious offence which is reflected in the maximum penalty of 15 years imprisonment.

16Mr Sullivan, who appeared on your behalf, submitted that the offending occurred in the context of the relationship between you and the victim breaking down. You had been living with the victim and believed that he had been taking advantage of you financially, particularly in relation to a valuable comic book that belonged to you. You attended the property intending to obtain the comic book, and when this was not forthcoming, you decided to take other items belonging to the victim. It is not contended by the prosecution that this robbery was pre-meditated, and I accept that your offending in this instance was relatively spontaneous and unsophisticated.

17Nevertheless, the victim was vulnerable as he was confined to a wheelchair when you entered his home together with an unknown co-offender. The victim felt threatened by your conduct when you demanded his money. Further, the co-offender stood in front of the victim while you were looking for items to steal.

18In all the circumstances, your conduct, while not representing a high end example of the offence of robbery, in my view, is still serious offending.

Victim impact statement

19A victim impact statement was prepared by Mr Sheen and tendered on the plea. In his statement, Mr Sheen describes how your offending has destroyed his ability to trust those around him and left him ‘always watching over [his] shoulder’. He was previously a social person who enjoyed going out for lunch, catching up with friends and going fishing. Your attack has left him isolated and feeling as if he needs to relocate from Geelong, where he has lived for 16 years.

20Mr Sheen also describes in his statement how he was wheelchair-bound at the time of the offending, which rendered him completely vulnerable to you and ‘terrified’ that you would seriously injure or kill him. Prior to this offending, Mr Sheen regarded you as a friend, someone to whom he had opened his home. Your actions have left him wondering how someone he thought he had a friendship with, could betray him in such a way.

21I take the content of the victim impact statement into account.

Personal circumstances

22You were born in 1972 and are now 50 years of age. You were born in Geelong to an Aboriginal mother and a non-Aboriginal father. You are the youngest of seven children.

23You became a ward of the state in 1976 at the age of three and a year later, were returned to the care of your father and paternal grandparents in Ballarat. Your father struggled with alcoholism and was unable to care for you adequately, and you were soon re-admitted into state care in Ballarat. A few months later, you were released into the care of your mother and her partner. They lived in a caravan on the Murray River with your six siblings. Conditions there were inadequate for two adults and seven children, and there was an apprehension that your father would seek out you and your siblings.

24Two years later, you again returned into state care at Miralee Reception Centre in Mildura. Whilst at Miralee, you were subjected to serious physical abuse and periods of isolation for up to a week at a time. During these periods of isolation, you would be locked in a house with food being passed through the door. On one occasion, you tried to escape the institution on a bike and were accidentally run over by a passing vehicle, resulting in a fracture to your leg.

25In late 1981, you were released from Miralee and placed into a foster care home with a family in Mildura for a period of 18 months. There, you were sexually assaulted by the biological son in the family, and were generally treated harshly. You were then moved into a second foster care home, where you had a much better experience. Unfortunately, you were returned to Miralee just eight months later after your foster mother had fallen pregnant and felt unable to care for you.

26The following year, you were transferred to the Baltara Reception Centre in Parkville, where a staff member introduced to you alcohol and cannabis. You received harsh and often bizarre punishments whilst at Baltara, including having to repetitively pick up frozen peas thrown on the floor and having to stand like a statue for hours on end. You also spent time in solitary confinement. You were physically assaulted by older inmates and sexually abused by a staff member.

27Later that year, you were transferred to Ashendene Boys Home, and then returned to Baltara. You tried to abscond from Baltara in September or October of 1985 and subsequently sent to Poplar House, a security unit at the Turana Youth Training Centre in Parkville. Whilst there, you were again physically assaulted by other inmates and sexually abused by a staff member. You adopted an aggressive approach in order to survive, and staff responded to your emerging aggression with harsh beatings.

28In 1987, at age fifteen, you were placed in a flat in Mildura under supervision. Conditions were harsh. You were not permitted a radio or television and you had access to one set of cutlery. You overdosed on Oxazepam, a benzodiazepine, on several occasions. After one overdose, you were taken to hospital to have your stomach pumped and were admitted to a psychiatric facility for one week. You were around the age of fifteen at this time.

29In 1989, your father invited you to live with him in Tasmania. He was working in a hotel at the time and drinking to excess. You had been living with him for about six months when you broke into the hotel where you father was employed, stole his car and returned to Victoria to live with your sister and brother-in-law in Geelong. You remained there for about six months, and then committed an armed robbery which resulted in you serving a two-year sentence.

30In terms of your personal relationships, you commenced a relationship with a woman in Geelong when you were twenty and had three children together. The relationship lasted for some ten years, ending acrimoniously, and you have had no further contact with her. Your three children are now adults. You also have a fourth child, the result of a brief relationship you had for about two weeks in between prison sentences.

31Two historical psychological reports were tendered on the plea. The first is dated 9 May 2009 and authored by consultant clinical psychologist Bernard Healey. The second report, dated 30 June 2020 was prepared by clinical psychologist Stephen Gault. Both reports provide comprehensive overviews of your formative years spent in and out of state care and in various juvenile detention facilities, as summarised above.

32Mr Gault also describes your substance use history. Cannabis is your drug of choice and you have said that you need to be intoxicated with cannabis before you feel you can leave the house. You used amphetamines on a daily basis for about sixteen years until it became hard to obtain because of the prevalence of methylamphetamine (‘ice’). You have been using ice daily for the past fourteen or so years. You have identified your addiction to ice – and the need to pay for it – as a relevant driver of your offending, noting to Mr Gault that you commit crimes in order to obtain money to pay for drugs, as well as necessities like food and clothing.

33You have also used heroin since 1992 after sustaining a back injury in a car accident, and have been on methadone and buprenorphine programs over the years to help manage your use of heroin.

34Mr Gault concludes in his report that you suffer from Methylamphetamine Use Disorder and Cannabis Use Disorder. You have been able to achieve early remissions in a controlled prison environment, but you report no significant periods of abstinence whilst in the community.

35You have an extensive and relevant criminal history extending back to 1989.

36Having spent more time in prison than in the community as an adult, you have no paid employment history. In terms of your schooling, you received a basic education whilst at Baltara, but have no formal secondary education. Whilst in custody you have studied maths and English and almost completed a degree in Police and Law Studies through Deakin University. During your current remand at the Melbourne Assessment Prison, you have used your time productively, working as a billet in your unit and engaging in seven semester long educational programs provided by Box Hill TAFE and five ATLAS two-hour courses. You have also been engaging with art and last year you were awarded the art design for the T-shirt for NAIDOC Week through The Torch program, demonstrating your artistic talent.

37It was submitted on your behalf that your active engagement with courses in custody has been a positive change for you. Further, and significantly, you have secured accommodation in Altona as a co-resident through the ReStart Program through ACSO, who will also offer you transitional support upon you release. You are currently receiving buprenorphine and ACSO will assist you on your release to link in with a local general practitioner and chemist to maintain your treatment.

Sentencing considerations

38I first take into account your plea of guilty. Although your plea came at a late stage, it has nevertheless saved the court the considerable time and expense of running a trial. Most importantly, your plea has avoided the need for the victim to be required to give evidence and relive the event. Your plea therefore provides evidence of your acceptance of responsibility and willingness to facilitate the course of justice.

39The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

40I take into account the fact that you have experienced significant disadvantage in your life from a very young age and I accept that the principles articulated in Bugmy v The Queen[2] should be given weight in the sentencing consideration.   As noted in Bugmy, the effects of a deprived background as you have experienced, do not diminish over time and should be given full weight in the determination of an appropriate sentence.[3]

[2] (2013) 249 CLR 571.

[3] At [44].

41As to your prospects of rehabilitation, they can only be assessed as relatively poor. Although you expressed sincere frustration and despair about your continued recidivism and repeated incarceration in your 2020 assessment with Mr Gault, you also do not see yourself as being invested with any power to change this pattern, effectively conveying to Mr Gault that you are better off in custody. That said, you have used your time productively in custody by completing a number of courses to further assist you upon your release. You have also demonstrated that you have artistic talent and recognise that commitment to your art is a way of you remaining engaged with your culture and something that you will pursue upon your release.

42Undoubtedly, general and specific deterrence are prominent sentencing considerations. Given your long history and the nature of your offending, protection of the community is also relevant.

43It was submitted that you have been working on a strategy to move away from the Geelong area for some time, and as noted, you have recently secured accommodation in Altona as a co-resident with a fellow inmate, for whom in time, you will become a full-time carer. Whilst I accept the provision of housing is a positive step, as Mr Gault opines in his report, you require a more structured environment over and above the provision of accommodation if you are to have a real chance at overcoming your drug addiction, which is the primary driver of your destructive behaviour when in the community.

44I take into account that you have served your remand while restrictions have remained in place due to the pandemic. This resulted in more periods of lockdown due to infections and staff shortages.

45I had you assessed for a community correction order in anticipation of consideration of a combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’) and you have been found suitable. Given your poor performance on previous correction orders, the writer of the assessment report expresses ‘serious hesitation’ when finding you suitable, also noting that you ‘reluctantly’ consented to the making of such an order.

46You are well aware of what is required to comply with a corrections order. While in the past you have struggled to meet the conditions of such an order, given the steps you have taken securing accommodation in a new location, your stability on buprenorphine and the pursuit of your art, in my view you should be given a further opportunity to demonstrate that on this occasion, you are at a stage where you have a real chance to turn your life around. I am also of the view that as a measutre of protection of you and the community, some supervision is required upon your release into the community.

Sentence

47Mr Dawes, would you please stand.

48Jason Dawes, on Charge 1, robbery, you are convicted and sentenced to 12 months imprisonment as the prison component of a combination sentence.

49Upon your release you will be placed on a community correction order for a period of 18 months. As noted, the focus of the order is to assist you to stay on a positive trajectory and continue your rehabilitation. As part of the order you will be required to undergo treatment  for drug addiction and you will be subject to supervision.

50Pursuant to s 18 of the Sentencing Act, I declare that 343 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

51Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 1 year and 9 months imprisonment with a non-parole period of 12 months.