Director of Public Prosecutions v Dean
[2014] VCC 791
•30 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00072
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE WILLIAM DEAN |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2014 | |
DATE OF SENTENCE: | 30 May 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Dean | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 791 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – pleas of guilty to armed robbery, aggravated burglary and recklessly causing injury – youthful offender in company - on a suspended sentence at time of offending - TES 5 years with minimum of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C Duckett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C Pearson | Robert Stary |
HIS HONOUR:
1 Luke William Dean, you have pleaded guilty to two charges of armed robbery, for which the maximum penalty is 25 years’ imprisonment (charges 1 and 3); aggravated burglary, for which the maximum is 25 years’ imprisonment (charge 2) and recklessly causing injury, for which the maximum on each charge is five years’ imprisonment (charges 4 and 5).
Circumstances of offending
2 The circumstances of your offending have been set out in an agreed comprehensive prosecution summary (exhibit A) which was read out at the plea hearing. A brief outline will suffice for present purposes.
3 On 19 June 2012, in the early hours of the morning, you and an unidentified man accosted a young man and woman at a rotunda in Chirnside Park. Your co-offender had an iron bar which he waved around in a threatening way. You demanded that the couple give you their belongings and repeatedly told them “not to fuck with” you. You robbed them of an iPhone, car keys and a small amount of money (charge 1).
4 During the robbery you searched the victim’s car and, by way of context, your co-offender hit the male victim to the back of his head with the iron bar. You demanded the male victim’s wallet but he told you that it was at his nearby home where he lived with his parents and brother. He told you his brother was at home and you directed him to drive to his home. When you arrived at there, you and the male victim went inside while your co-offender waited in the car with the female victim. As the male victim was unlocking his front door, you pulled out a knife and threatened him with it and said “If you fuck us around you know what happens”. Not surprisingly, the victim was terrified. (charge 2).
5 Once inside the house, you stole the male victim’s wallet. You threatened his brother with the knife and stole his mobile telephone, credit card and laptop computer (charge 3).
6 The two brothers then tried to disarm you but you fought with them. In the course of that struggle, the male victim suffered injuries comprising a lump on the back of his head, a bite mark on his left upper arm, multiple abrasions to his right hand and a 7 centimetre vertical laceration on the right hand side of his chest (charge 4). His brother suffered a bite mark to his right bicep, abrasions to his face, bruising to his right ear, scratches to his right hand and upper limbs, a cut to his right ear, a bump to his forehead, and his nose was bleeding (charge 5).
7 The brothers were able to get the knife from you and throw it away but you yelled out to your co-offender to come to the house to help you. He smashed his way in and one of the brothers jumped off a balcony to get assistance from a neighbour. You grabbed the stolen laptop and the two of you fled.
8 The police were called and later that morning one of the stolen mobile telephones was located nearby.
9 Six days later, on 25 June 2012, the victim’s vehicle, which you had commandeered, was processed by police and your fingerprints were found on a knife blade which had a distinctive leather strap attached to it. This was a different knife to the one you used in the house.
10 On 21 August 2012, you were arrested and made a “no comment” record of interview. In spite of your discovered fingerprints on the knife, police did not charge you with the offending. However, in August 2013, police strongly linked your DNA to blood samples found on the victims’ clothing, which was the result of the violent struggle you had had with the two brothers. Charges were laid against you in November 2013 and you pleaded guilty at a committal in January this year.
Victim impact
11 Each of the three victims declined to make victim impact statements. Nevertheless, they were in their early twenties and there can be no doubt they would have been traumatised by your conduct. Indeed, this is confirmed in a victim impact statement declared on 30 April last by the mother of the two young men. She states that as a result of your offending, their family life changed forever. She spoke of the gross invasion of privacy, sleeping difficulties and not feeling safe and secure in the family home. Such was the anger, distress and fear caused, the family sold their house and moved elsewhere. There is continuing anxiety.
12 This statement is a telling reminder of the human impact of your crimes. You should feel a great deal of shame and remorse for the impact of your offending on all the victims.
Background and personal circumstances
13 I shall turn to your background and personal circumstances, which have been helpfully set out in a psychological report from Mr Jeffrey Cummins dated 29 April 2014 and counsel’s written submission. You are now twenty four and were twenty two at the time of offending. You are the youngest of three children. You were brought up in close and supportive family environment. Your father is an accountant and your mother a nurse who practises as a physical rehabilitation therapist. You have had a good relationship with your parents and your older siblings.
14 You left high school midway through year 10, having struggled with learning difficulties. You completed twelve months of a carpentry apprenticeship but left to do factory work, followed by two years as a sheet plastering apprentice, although that remained uncompleted as you found the study too difficult. At around nineteen or twenty, you ceased meaningful employment.
15 Regrettably, from your late teenage years, you have significantly abused alcohol and illicit drugs, including cannabis, crystal methylamphetamine (ice) and heroin. No doubt this alcohol and drug problem compromised your academic effort and it has been significantly associated with a disturbing criminal history. Over almost six and a half years between 2005, when you were fifteen, and 2011, when you were twenty one, you have been found guilty or convicted of 52 offences arising from six court appearances. Leaving aside sixteen driving offences, you have been found guilty of twelve offences of dishonesty; four offences of recklessly causing injury, on three separate occasions; offences of possessing and using drugs; damaging property and possessing a prohibited weapon and ammunition without a permit in December 2011. For this offending, you were sentenced to a number of good behaviour bonds in the Children’s Court and imprisonment to be served by way of an Intensive Correction Order, which you breached.
16 In December 2011, you were convicted of various offences, including dishonesty and drug matters, and sentenced to 120 days’ imprisonment of which 60 days was suspended for nine months. Accordingly, you offended whilst on that suspended sentence.
17 Other than for a brief assessment for drug treatment in October 2011, you have had no meaningful treatment and support for your drug addiction. Indeed, the psychologist indicates that you committed these offences when you were using ice and misusing the prescription drug, Xanax.
18 In the psychologist’s opinion, you have normal intellectual capacity but function at least at the lower end of the low-average range. You were diagnosed as suffering from depression about four or five years ago and it was suggested you should be trialled on anti-depressant medication. You were remorseful and expressed victim empathy. You were diagnosed as having a Chronic Adjustment Disorder with Depressed Mood and you may also have attracted the diagnosis of a Persistent Depressive Disorder of at least moderate severity. In the psychologist’s opinion, you were most probably self-medicating at the time of offending.
19 On 13 July 2012, you were arrested and placed in custody on a variety of dishonesty, drug and driving offences, most of which were committed in June 2012. These matters were dealt with at the Magistrates’ Court on 6 September 2012 when you were sentenced to a total effective sentence of twelve months’ imprisonment with a minimum of six months. At this time, you were also breached on the extended Intensive Correction Order and ordered to serve 176 days’ imprisonment and the 60 day suspended sentence was restored and ordered to be served concurrently.
20 On 29 December 2012, you were granted parole for a period of nine months. However, you were claimed on a parole breach and placed in custody on 6 May 2013, where you have remained to the present.
21 On 22 July 2013, you were dealt with for dishonesty offences which were committed before the present offending, and also for an offence of threatening to kill and dishonesty offences which were committed between March and May 2013 when you were on parole. For this offending, you were sentenced to a total effective sentence of twelve months’ imprisonment with a minimum of four months, which was to be served cumulatively on the sentence imposed in September 2012. The end date of your current sentence is 5 February 2015 and the parties agree there is no requirement to fix a new minimum sentence because you have already served your minimum terms under the sentences imposed in September 2012 and July 2013.
Mitigating circumstances
22 There are a number of mitigating circumstances. You come from a law-abiding and responsible family background. I received a helpful letter from your parents. You retain a close and loving relationship with your family members who are standing by you and have attended court. You struggled academically then tried hard to complete apprenticeships and get employment. However, you were afflicted by a serious drug and alcohol addiction. Whilst not strictly mitigating, this problem led you to bad associates and trouble with the law.
23 I do agree with your submission that police should have charged you with this offending in August 2012 when you were interviewed by them. The fact that your fingerprints were on the weapon in the car was a powerful piece of evidence which implicated you in the offending and it would have justified the laying of charges. The forensic examination revealing your DNA on the blood-stained clothing should have taken place far more expeditiously than it did. I accept that from August 2012 until you were charged in November 2013, you lived in an uncertain state of suspense. Hence, there has been a significant delay of about fifteen months and there has been rehabilitation, at least since you were placed in custody in May 2013.
24 You pleaded guilty at committal in January 2014, which was the first available opportunity. Your pleas have saved the community considerable time, expense and inconvenience and in addition to having a utilitarian effect and serving the ends of justice, I am satisfied that they are associated with victim empathy and genuine remorse on your part.
25 I also accept the psychologist’s opinion that because of your mental health problems, serving a sentence would be more onerous for you when compared with another without those conditions. As submitted, there should be a modest adjustment of sentence in your favour for this reason.
26 Since being placed in custody in May 2013, there has been rehabilitation, although not completely so as you have been disciplined for adverse drug urine screens. On the plus side, you completed a 40 hour drug treatment program in October 2013. You have worked on your fitness and attempted to undertake courses to improve your general knowledge and reading skills. You are waiting to get into a literacy and numeracy course. You are on a methadone program and anti-depressants. You have shown remorse for, and insight into, your offending and understand drug addiction has ruined your life.
27 Finally, you are to be sentenced as youthful offender. This is a matter of great significance, as the law strives to promote the rehabilitation of youthful offenders and acknowledges that a prison environment can be very corrosive of that aim.
28 I remain guarded as to your prospects of rehabilitation. Much in that regard will depend on whether you can undertake appropriate courses for drug treatment and personality management and how well you go once you are ultimately released into the community with family and parole support.
Other sentencing considerations
29 There are, of course, other important sentencing considerations. It was submitted that you have a relatively limited prior criminal record for violence. I do not accept this as you have four prior convictions for recklessly causing injury and one for possessing a prohibited weapon. You also have a subsequent conviction for making a threat to kill.
30 It was also submitted that due to your drug and alcohol intoxication at the time of offending, you are not sure of your co-offender’s identity and do not want to falsely implicate any other person. I do not accept this submission, which smacks against your claim to remorse, although this is not to be treated as an aggravating circumstance. People who commit serious offences in company do not act in a vacuum; they have to know they can rely on the identity and assistance of co-offenders. Indeed, you called on your co-offender to come into the house to assist you in your struggle with the two brothers.
31 I consider your offending to be very serious. It was planned and deliberate. It was in company and at night. Not content with what you got from the armed robbery at the rotunda, you then forced the terrified victims to take you in the car to the male victim’s home. The young woman was kept in the car by your co-offender, who had just hit her friend over the head with the iron bar. You then forced the male victim into his own home at knifepoint. This was a serious home invasion. Once inside, you confronted his brother with a knife and whilst looking for more money, you recklessly caused injury, before stealing more property. Whilst it is true that your offending occurred over a relatively short 15 or 20 minute period, it nevertheless was long enough to cause significant psychological trauma to the three victims and actual injury to the two brothers. However, I do not accept the prosecution submission that the injuries suffered “are at the upper end of the scale of injuries”. They were troubling but not of that extremity. Finally, your offending is aggravated by the fact that you were on a suspended sentence at the time you committed the offences.
32 In these serious circumstances, I do not agree that, as submitted, it would be appropriate to impose a sentence with a greater than usual disparity between the head sentence and the minimum term.
33 However, I do consider that there is a strong claim to the operation of the principle of totality in your case. Had you been charged for this offending in an expeditious way, it would have been open for you to have been dealt with for these matters at the same as the offending dealt with in September 2012 and July 2013. I must lessen the sentence having regard to what would have been an appropriate sentence for the whole of your offending over this time. And the prosecution has conceded that the time you have been in custody since May 2013 should be treated in your favour as Renzella[1] time.
[1]R v Renzella [1997] 2 VR 88.
34 I agree with the prosecution submission that there should be a moderate measure of cumulation having regard to the different offending and the different victims involved, although there should be no double punishment.
35 I also consider there is no reason to disturb the statutory presumption under s16(1) of the Sentencing Act 1991 that the sentences to be imposed today should be served concurrently with the sentence you are presently undergoing. Both parties agree with that.
36 Obviously, I must have regard to the maximum penalties, particularly those of 25 years’ imprisonment for armed robbery and aggravated burglary. You have seriously escalated your offending conduct by the commission of these offences. The principles of general and specific deterrence, just punishment, community protection and denunciation are all equally important as that of your rehabilitation.
37 On behalf of the community, I strongly denounce your offending.
Sentence
38 Mr Dean, please stand up. You are convicted on all charges. On charge 1, armed robbery, you are sentenced to three years’ imprisonment. On charge 2, aggravated burglary, you are sentenced to four years’ imprisonment. On charge 3, armed robbery, you are sentenced to three years’ imprisonment. On each of charges 4 and 5, recklessly causing injury, you are sentenced to twelve months’ imprisonment.
39 The sentence imposed on charge 2 is the base sentence. I make the following orders for cumulation. Four months of each of the sentences on charges 1 and 3, and two months of each of the sentences on charges 4 and 5, are to be served cumulatively on the sentence imposed on charge 2 and upon each other.
40 The total effective sentence is five years’ imprisonment. I order that you shall not be eligible for release on parole before serving three years’ imprisonment.
41 I will make the forensic sample order which is agreed to. Because of the seriousness of your offending on charges 1, 2 and 3; your prior convictions; the fact that the order is by consent; and that the granting of the order is in the public interest, pursuant to s464ZFB (1) of the Crimes Act 1958, I order that the forensic sample and any related material and information obtained pursuant to your informed consent given on 21 August 2012 be retained for placement on the database. I will sign the order provided to me by the prosecution.
42 I will also make the disposal order which is agreed to.
43 Please sit down for the moment. I hand to the prosecution those signed orders.
44 I ask counsel whether there are any mechanical issues arising from the sentence?
45 Counsel: No your Honour. [discussion concerning s.6AAA]
46 But for your pleas of guilty, I would have imposed a total effective sentence of six and a half years’ imprisonment with a minimum of four and a half years’ imprisonment.
47 Mr Dean, you will need to go with the prison officers now. Thank you. Yes, please remove the offender.
48 [Offender removed].
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