Director of Public Prosecutions v Deery

[2019] VCC 978

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 18-01452

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE DEERY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2019
CASE MAY BE CITED AS:	DPP v Deery
MEDIUM NEUTRAL CITATION:	[2019] VCC 978

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Weigl
For the Accused	Mr R. Lawson

HIS HONOUR: 

1Kyle Deery, you have pleaded guilty to the following offences:

Charge	No	Maximum
Prohibited Person in Possession of a Firearm	1, 3, 8, 9	10 years
Handling Stolen Goods	2	15 years
Armed Robbery	4, 6	25 years
Causing Injury Recklessly	5	5 years
Obtaining Property by Deception	7	10 years

2I note at this point that the armed robbery offences are not Category 2 offences, (because of the date of the offending) nor do they attract the Serious Offender Provisions in Part 2A of the Sentencing Act 1991.

3You have admitted extensive prior convictions, a number of which are relevant to the sentencing consideration in these matters.  I shall return to those matters later in these remarks.

4Mr Menon of counsel, on behalf of the OPP, tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows.

5Between 12 and 26 October 2015, a burglary occurred at a property in Winchelsea.  A gun safe was forced open and a Marlin rifle with a tripod and scope attached was stolen from the victim.  The rifle was later found loaded, sawn-off and with your DNA on it at a location close to where you were arrested by police on 2 December 2015.  This offending constitutes Charges 1 and 2.

6Then at approximately 10.45 pm on Friday 16 June 2017, you entered Newcomb Cellars bottle shop, located in Watsons Road, Newcomb, with an unknown co-offender.  Inside were the victims, Ligang Zhu and Tanny Zhu.  At the time of entry you were armed with a sawn-off side-by-side double-barrelled shotgun and you were wearing a balaclava and gloves.  Your co-offender was armed with a sawn-off bolt-action rifle.  You and your co-offender pointed your firearms at both Tanny and Ligang Zhu and made demands for cash and cigarettes.  You also engaged in a brief scuffle with Ligang Zhu.  A portion of your glove bearing your DNA was torn off during this scuffle.  You left the store with cash and cigarettes valued at approximately two and a half thousand dollars.  This offending constitutes Charges 3 and 4.

7At 12.55 am on Friday 23 June 2017, you and an unknown co-offender, blocked in the vehicle of Nathan Sheridan and Alex Beattie, while they were eating food in their car at a local reserve.  You and your co-offender, both armed, approached the vehicle.  Your co offender struck Mr Sheridan to the right cheek with the barrel of the firearm, fracturing his cheek and causing a circular wound needing stitches.  ­You then demanded he hand over his wallet, phone and keys. Mr Beattie also handed over his wallet and you demanded their PINs.  You said words to the effect of, ‘Don’t tell anyone about this, don’t go to the cops, we know where you live’.  At approximately 1.21 am, Mr Sheridan’s bank card was used to make four withdrawals totalling $940.  This offending constitutes Charges 5, 6 and 7.

8I make the observation that although it was your co-offender who struck
Mr Sheridan, you remain liable for those actions carried out within the scope of the armed robbery.

9On 26 June 2017, police commenced surveillance of your house.  You were surveilled coming out of the house with a dark-coloured backpack and in the company of another man.  You and your passenger got into the car and you were followed.  Police saw you stop initially at a BP service station and then later stop outside a McDonald’s and a 7-Eleven convenience store on the Western Ring Road in Deer Park.  You were arrested by police after you attempted to run away.  The Hilux vehicle was searched and the black backpack was seen in the driver’s side back seat.  In the backpack were two firearms.  First, a 0.22 Voere brand bolt-action repeating rifle, which was sawn-off; and secondly, a sawn-off side-by-side double-barrelled shotgun.  The rifle had a bullet in the chamber, but no magazine attached.  The shotgun was loaded with two shells.  This offending constitutes Charges 8 and 9.

10You were interviewed by police and made a 'no comment' record of interview. You have remained in custody ever since, which I am told is 732 days, excluding today.  

11You were a prohibited person when you were in possession of each of the firearms, because you had been placed on a community corrections order in September 2015 and also for the fact that it was a less than five years since you had served a term of imprisonment for offences of assault with a weapon and aggravated burglary.

12The offences to which you have pleaded guilty are very serious instances of armed robbery and being a prohibited person in possession of a firearm.  The armed robbery charges are serious because they were both committed with firearms and in the company of another person on both occasions.  The second armed robbery is made even more serious for the fact that a helpless victim was taken completely by surprise and viciously hit in the face with the butt of a firearm.  The offences of being a prohibited person in possession of a firearm are serious, for the fact that on two occasions the firearms found in your possession were loaded.  Moreover, there are four instances in which you were in possession of a firearm over a period of about 18 months.

13The victim impact statements of those whom you confronted with weapons during the two armed robberies, speak of the ongoing fear and anxiety your actions have caused them, even two years after the events.  Mr Sheridan, who was hit to the face during the second armed robbery, requested that his victim impact statement was not read to the court.  I can say without breaching his request for privacy, that the effect of those actions in the course of the frightening experience of threats and having a firearm pointed at him, have had a profound effect upon him.  The effect of your threat was made even more chilling by the fact that you stole identification cards which had his address on them and the threats you made were that, not to go to the police because you knew where he lived.

14You have prior convictions for offences relating to firearms, handling stolen goods, assault-related offences and robbery.  Your moral culpability for all of these offences is very high and as I have said, these are serious instances of these types of offending.  Your offending is not mitigated by the fact that you told the psychologists that you were drug-affected at the time. 

15Your offending on each of these occasions must be met by principles of general and specific deterrence, denunciation, just punishment and protection of the community.  All this means that you must face a stern period of imprisonment and stern punishment for these offences.

16I pause here to make this observation.  When you were arrested in December 2015, you made 'no comment' to police and you were then released.  When you were arrested again on 26 June 2017, you made 'no comment' to the police. The police investigation of your offending was thorough and comprehensive. The combination of DNA evidence, analysis of your call charge records, your clothing and evidence matches between items found at your home and in the CCTV footage of the Newcomb cellars robbery and the description matches, provided by victims of your second armed robbery, made the case against you overwhelming.  Your guilty plea was made only on the eve of your trial, when new counsel was briefed.

17I accept the implication that until Mr Lawson was briefed, you had been poorly advised.  It was your decision to finally terminate the services of your previous lawyers that aided that.  When Mr Lawson was briefed, you readily accepted his advice.

18In the circumstances, I consider that your plea of guilty, although made late, has considerable utilitarian benefit.  It also appears that you were uncomfortable with the previous advice you were receiving.  I take this as a sign that you may have some insight into your offending and you have some desire to rehabilitate.  In this way, I consider your plea of guilty should be used to mitigate your sentence for these matters.

19I turn now to your personal circumstances.

20You are 28 years of age and you were born on 22 September 1990.  You were 25 years of age at the time of Charges 1 and 2 and 26 at the time of Charges 3 to 9.

21You were raised by your mother and never knew your biological father.  Your mother, grandmother and your long-time partner were present in court to support you through your plea.  It is not entirely clear how much support you get from your mother.  You told Mr Cummins, psychologist, in February 2019, that you are not close to your mother.  I note also that you have no siblings.

22You are, however, close to your grandmother and you consider that, whilst your mother was at work, you were primarily raised by your grandmother.

23You completed your primary schooling at Roseville primary and then St Francis Xavier in Geelong.  You attended Geelong Grammar for a time, (your school fees were met by your mother’s then partner) but you were expelled in
Year 8 for drug trafficking.  You then successfully completed Year 11 at Newcomb Secondary College.

24After completing your school education, you worked two years as a bricklayer's apprentice.  This was interrupted by your imprisonment.  In between periods of imprisonment, you have undertaken some fencing work with your partner's grandfather, Peter Basten.  Mr Basten provided a reference.  Although he has recently sold his fencing business, he states that he will continue to support you.

25Your long-time partner, Leah McDonald, was also present in court.  You and Ms McDonald are the parents of a two-year-old daughter.  I received a letter from Ms McDonald and from her treating GP, Dr Idris.  Ms McDonald suffers from serious health issues, including the management of a cyst in the frontal lobe of her brain and a tumour found in her pituitary gland in the brain.  She must undergo surgery for this in the near future.  Ms McDonald suffers from other health issues, which has caused her, her family and you, considerable stress and concern, particularly in light of your concern for the future of your young daughter.

26From your early childhood, you were treated for difficulties relating to your behavioural patterns and emotional states.  In your young years, a paediatrician, Dr Jenna, considered that you suffered from a serious anxiety disorder, ADHD, conduct disorder and perhaps even an evolving bipolar disorder.  Mr Cummins, psychologist, considers in his assessment, that you have grown out of the ADHD symptoms.  When you were reviewed on 17 June 2019 by Mr Cummins, he assessed you as somewhat less depressed than when you were when initially interviewed.  Mr Cummins considers that you probably suffer from a trauma-related disorder, although you did not elaborate to him on the traumatic event which triggered this.

27You started using cannabis between the ages of 14 and 16, then moved to the intermittent use of ecstasy and then sometimes daily use of amphetamines. You were introduced to methamphetamine at age 21 and you have used up to a gram of that drug daily at times during your liberty.  You have never undergone any residential drug detoxification or rehabilitation program.  You told
Mr Cummins that your offending would have been committed under the influence of methamphetamines.

28As I have already observed, you have relevant prior convictions.

29In May 2010 you were convicted of assault with a weapon and intentionally causing injury.  For these charges you received a nine-months' community based order and a sentence of six months, with three months' imprisonment suspended (on appeal).

30In August 2010, on a charge of robbery, you were convicted and sentenced to two years' imprisonment, suspended.  In March 2012, you breached the suspended sentence, when you were convicted of assault with a weapon and aggravated burglary.  You received a period of three years and six months, with a two year non-parole period.  I was told that you did not receive any parole.

31In March 2012, you were also dealt with for the breach of the CBO.

32In September 2015, you are convicted of being a prohibited person in possession of a firearm and possession of the drug, ice.  You were then placed on a CCO.

33In May 2016, you were convicted of contravening the CCO on charges of handle stolen goods, reckless conduct endangering a person, being a prohibited person in charge of a shortened firearm, dishonesty offences and offences committed whilst on bail.  You received an aggregate sentence of 12 months' imprisonment for these offences.

34Mr Lawson, who appeared on your behalf, observed that since you turned 21 years of age, seven years and 10 months have passed of which you have served six years in custody.  In other words, you have had only 13 months out of prison for much of your adult life.

35Moreover, you have contravened every opportunity provided to you to remain in the community, two community orders, a suspended sentence and a bail release order.

36Since you have been in custody on this occasion, you have served most of the time on remand at Barwon Prison and most of that time in maximum-security. Mr Cummins' report refers to the fact that you have done much time in solitary confinement and as a corollary of being in maximum-security, your privileges and liberties have been somewhat reduced.  Mr Cummins considers that this time in maximum-security would contribute to your continuing mental health issues.

37Nevertheless, you have been completing a small business course whilst on remand.  You are positive about your desire to rebuild a relationship with
Ms McDonald on your release and you look forward to the job of parenting your young child.  As I have mentioned, you have the support of your grandmother and of your partner's grandparents.  You receive visits from your partner, your daughter and your grandmother on a regular basis.

38In his plea on your behalf, Mr Lawson submitted that your sentence should be mitigated by the following:

39First of all, the plea of guilty.  I have already made observations about the utilitarian effect of the plea and I will mitigate your sentence accordingly;

40Next, although your prospects for rehabilitation must remain guarded and are, at least to a large extent, dependent upon your ability to refrain from drug use, you still have family support.  You have previously shown an ability and desire to work when you have had your liberty.  These factors combine to enhance your prospects for your rehabilitation upon your release;

41Next, it was submitted you have used your time in custody positively and you have not let the conditions of your confinement make you bitter or angry.  To Mr Lawson’s assessment, you remain calm and you have insight into your offending.

42Whilst Mr Lawson always remained conscious of acknowledging the seriousness of your offending, he urged that I should take into account the long period that you have spent in custody in your adult years and the lack of structure or supervision whilst in the community, given that you were previously denied parole and that you have not completed any detoxification or rehabilitation programs.  Mr Lawson, in effect, submitted that the sentence
I impose should not be lengthened by providing a long gap between the head sentence and non-parole period, as he feared that for reasons unknown, you will again be denied parole.

43As I stated during the plea hearing, the law prevents me from taking into account whether or not you are likely to be granted parole.  Further, the law requires me to set a non-parole period in respect to a head sentence for the type of sentence that must be imposed for this offending.

44I accept that you may have recently had a change of heart and developed some insight into your offending, which prompted the change of plea.  I also accept that you have some family support and that you have used your time in custody to undertake the small business course.  These are all positive factors.

45It is difficult, however, to measure your resolve to refrain from drug use in the future.  I certainly cannot use your limited time of liberty over the last nearly eight years as a positive measure of your resolve.  If you want to truly refrain from drug use, the test of your resolve will come upon your release from prison.

46Even at your relatively young age, your prospects for rehabilitation are, at best, poor to guarded, unless there is a true change demonstrated in your behaviour.

47I make the observation that it would be desirable that you serve at least a portion of your time in the community, when released into the community, under the supervision provided by parole.  However, I say again, it is not a matter over which I have any power or influence.  The judgement made by the parole board is a matter between you and them.

48On Charge 1, the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to 18 months' imprisonment.

49On Charge 2, the charge of dishonestly handle stolen goods, you are convicted and sentenced to seven months' imprisonment.

50On Charge 3, the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to 14 months' imprisonment.

51On Charge 4, the charge of armed robbery, you are convicted and sentenced to three years and six months' imprisonment.  That is, 42 months.

52On Charge 5, the charge of recklessly causing injury, you are convicted and sentenced to 14 months' imprisonment. 

53On Charge 6, the charged of armed robbery, you are convicted and sentenced to three years and nine months imprisonment.  That is, 45 months.

54On Charge 7, the charge of obtain property by deception, you are convicted and sentenced to six months' imprisonment. 

55On Charge 8, the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to 18 months' imprisonment.

56On Charge 9, the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to 18 months' imprisonment. 

57Charge 6 is the base sentence of 45 months.   To that I cumulate six months of Charge 1, one month of Charge 2, five months of Charge 3, 21 months of Charge 4, four months of Charge 5, one month of Charge 7, six months of Charge 8 and six months of Charge 9. 

58

The total effective sentence imposed is a sentence of seven years and

11 months.

59I set a non-parole period of five years and six months. 

60I declare the period of pre-sentence detention of 732 days, excluding today, reckoned as already served. 

61

The 6AAA declaration is, but for the plea of guilty in respect to these matters,

I would have sentenced you to a term of 10 years, with seven and a half years to serve.

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