Director of Public Prosecutions v Delacorn, James Edward
[2013] VCC 672
•9 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00337
CR-13-00338
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES EDWARD DELACORN |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 May 2013 | |
CASE MAY BE CITED AS: | DPP v Delacorn, James Edward | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 672 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Picone, Office of Public Prosecutions | |
| For the Accused | Ms S. Kennedy |
HER HONOUR:
1 James Edward Delacorn, you have pleaded guilty to two charges of armed robbery. The maximum penalty for this offence is 25 years' imprisonment. You have also pleaded guilty to one charge of attempted armed robbery. The maximum penalty for this offence is 20 years' imprisonment. You have also pleaded guilty to one charge of handling stolen goods. The maximum penalty for this offence is 15 years' imprisonment.
2 The prosecution has tendered and read out in open court a summary of the case that is brought against you. You admitted the truth and accuracy of that statement, and I sentence you on the facts as set out in that document.
3 The charge of handling stolen goods, Charge 1, relates to two vehicle number plates which you stole from MEGT Australia Limited at some stage between 28 September and 1 October 2012.
4 The first armed robbery, which is the subject of Charge 2, occurred at approximately 3.15 pm on 25 November 2012 when you entered a service station, waited for other customers to leave, took a meat pie to the counter and asked the attendant victim for a packet of cigarettes. When he placed the cigarettes on the counter you produced a tyre lever which you had hidden in your clothing, lifted it up to chest height and demanded that he give you all the money in the cash register. He gave you all the $20 notes and you asked for the rest, which he gave you. You left the store with $450 in stolen cash, the cigarettes and the meat pie.
5 The second armed robbery, which is the subject of Charge 3, occurred at approximately 1.55 pm on the following day, 26 November 2012. You parked your car about 200 metres from another service station and went into the store with the same tyre lever concealed in your clothing. You waited for other customers to leave, asked the attendant victim for a packet of cigarettes and when he requested payment for them you produced the tyre lever and demanded that he open the till. He gave you some money and you asked for more, which he gave you. You ran out of the store with $975 in stolen cash and the cigarettes.
6 The following day on 27 November 2012 at approximately 2.45 pm you attended at the front counter of a Safeway Supermarket liquor department with two bottles of alcohol. You produced the tyre lever from your pants and told the attendant victim to empty the till. He refused, told you to leave and grabbed the two bottles from you. You then left the store. This is the subject of Charge 4.
7 Each of the armed robberies and the attempted armed robbery were committed in the afternoon in broad daylight and were captured on CCTV footage. You wore a hoodie during the second armed robbery, but it did not conceal your face. Your fingerprints were subsequently located on a bottle of oil you picked up during the second armed robbery and on two bottles of alcohol you selected during the attempted armed robbery.
8 The above offences were committed whilst you were on bail and undergoing a Community Based Order involving treatment conditions. The offending occurred over three successive days but involved three different establishments and three different victims.
9 You were arrested on 30 November 2012 when you attended at the Chelsea Police Station in order to report on bail for other matters. You made full admissions in two recorded interviews on that day. In the first interview relating to the armed robberies, you told police that you committed the offences because you needed the money for drinking and gambling, that you found the tyre lever after getting off the bus on your way to the first service station and that you spent the stolen money on alcohol and on gambling.
10 You said that in relation to the second armed robbery you were, "Really quite deluded because I took a whole bunch of sleeping tablets the night before." You also said that you committed the offences because you wanted money for drinking and gambling and that if you did not get a drink within at least two days you started getting bad withdrawal symptoms such as shaking.
11 In the second interview relating to the attempted armed robbery, you told police that you had the tyre lever with you for protection because you were feeling paranoid and that you offended because you "had no money and alcoholism and also just gambling."
12 Police searched your car and found the tyre lever used in the armed robberies and the attempted armed robbery and the green hoodie you wore when committing the second armed robbery.
13 You have been in custody since your arrest on 30 November 2012. There are, by my calculation, and I stand to be corrected by the parties, 140 days available as pre-sentence detention not including today.
14 On 16 April 2013 you were sentenced for other matters in the Heidelberg Magistrates' Court.
15 None of the victims wished to make a victim impact statement. However, I note that the victim of the second armed robbery said in his police statement that when he saw you holding the metal bar he feared for his safety if he did not do what you asked.
16 Ms Kennedy made a plea in mitigation on your behalf. She tendered a letter from a psychiatrist, Dr Taloori, who works for the Crisis Assessment and Treatment Team of the Eastern Health Area, Adult Mental Health Services. She also tendered a report of psychologist, Mr Jeffrey Cummins, dated 11 April 2013. The report was prepared for the hearing at the Heidelberg Magistrates' Court on 16 April 2013, but addressed your background and personal circumstances. That material was supplemented by information obtained by your counsel from your mother who was in court to support you during your plea hearing.
17 You are now 31 years old. Your parents separated when you were five, and you had no ongoing contact with your father. You left school in Year 9 and worked with a cake maker for three years. You attempted an electrical pre-apprenticeship course but withdrew because you found it too difficult. Since then you have worked as a roof tiler. You started drinking seriously and your gambling escalated six or seven years ago when your grandfather died.
18 You had a four-year relationship with an older woman, which she ended while you were undergoing inpatient detoxification in late 2011. You had multiple emergency psychiatric attendances at the Alfred Hospital in May 2010, July 2011, and several emergency department presentations in 2011 and early 2011, but no admissions to the Mental Health Services between August and December 2011.
19 Mr Cummins reviewed your file notes from the Alfred Psychiatric Unit and noted that the records indicated a past history of conduct disorder in conjunction with poly substance abuse including alcohol dependence and problematic gambling as well a history of suicidality. You were on antipsychotic and antidepressant medication in late 2011 and early 2012. You were referred to supported accommodation and lived there for three months.
20 Between March and August 2012 you had full time work as a roof tiler and were renting private accommodation. However, your drinking and gambling escalated and you could not afford the rent. You moved out and were living in your car or in friends' living rooms. At the time of your arrest you were living in temporary accommodation provided by Hanover.
21 In 2012 you were drinking cask wine and vodka daily, sometimes drinking two bottles of vodka in a day. According to Mr Cummins' report you had given up on yourself and were feeling rejected by your former partner.
22 Ms Kennedy submitted that the armed robberies and attempted armed robbery occurred in the context of you being affected by alcohol and medication. However, she did not submit that there was a causal nexus between your depression and other mental disorders and the commission of the offences.
23 Mr Cummins diagnosed you as a chronic alcoholic who also suffers from a pathological gambling disorder, a borderline personality disorder, a chronic dysthymic disorder and possibly a current major depressive disorder. He also felt that you had probably experienced some episodes of alcohol and/or drug-induced psychosis. Mr Cummins concluded that you require residential alcohol rehabilitation and treatment in relation to your dependency and gambling and general mental health treatment.
24 Ms Kennedy acknowledged that a term of immediate imprisonment was inevitable, but submitted that I should adopt Mr Cummins' recommendation of a disposition including a disproportionately long period of parole including residential alcohol rehabilitation, particularly as this is your first time in custody. She noted that you have not been receiving psychiatric medication while in custody because your last prescription prior to your arrest had been more than three months earlier, and I will address this when I invite counsel to assist me with the orders that I make in relation to custody management. I am concerned, of course, that you receive whatever psychological and psychiatric treatment that you need whilst in custody. So I will come back to that at the end.
25 Ms Kennedy pointed out that you have the support of your mother, who was in court during your plea hearing and is here today, and have been visited regularly by her and by your father and sister.
26 You have a prior history which does not include any offences of violence. The priors include theft, obtaining property by deception, traffic offences, careless and dangerous driving, failing to answer bail and breach of a CBO.
27 At the time of your arrest on 30 November 2012 you had a number of matters pending, including theft of petrol, breaches of a CBO and driving offences. These were dealt with on 16 April 2013 at the Heidelberg Magistrates' Court where you were sentenced to six months' imprisonment with three months suspended for two years. You are currently serving that sentence and are due for release on 16 July 2013.
28 You made full admissions in both police interviews and indicated an intention to plead at an early stage, that is at the first committal mention. Your admissions and your plea of guilty are indicative of your remorse. Your plea warrants a substantial discount, not just because it indicates remorse, but also because you are entitled to a statutory discount for that plea.
29 I acknowledge that your plea is of social utility and that the community has been spared the cost and expense of a trial. No witnesses were required to give evidence against you. I note that you did not oppose the making of the compensation order, forensic sample order and disposal order sought by the prosecution.
30 The prosecution agreed that your offending was at the lower end of the scale having regard to the fact that there was little planning involved, particularly in relation to the first armed robbery, that the conduct was unsophisticated, that it occurred in broad daylight and that you were undisguised.
31 I acknowledge that you have suffered some serious psychological problems around the losses of significant relationships in your life, particularly the death of your grandfather, and the break-down of your four-year relationship with your girlfriend in late 2011.
32 It is clear from your interaction with Emergency Psychiatric Services and from your being on antipsychotic and antidepressant medication in late 2011 and early 2012 that the offending took place against a troubled personal background which includes mental illness, alcoholism and chronic gambling.
33 There were, however, some aggravating features of your conduct. Firstly, that the offences occurred while you were on bail and on a CBO with treatment conditions. Secondly, that there was some planning of the second armed robbery and the attempted armed robbery in that you took the tyre lever to each of those places.
34 I consider that some measure of cumulation is appropriate to address the fact that the offences occurred over successive days.
35
I note that you are 31 years old and have prospects of rehabilitation if your mental health and alcohol and gambling problems are addressed. I note that you have family support from your mother and sister and have recently
re-engaged with your father who is also visiting you.
36 Armed robbery is a serious crime which generally warrants a significant period of imprisonment. It is important to protect the community from being exposed to further offences, but also to protect it from the loss of security and confidence in law and order. Armed robberies such as these are usually perpetrated on defenceless members of the community while they are going about their business, usually in circumstances of isolation. The victims are soft targets.
37 The principles of general and specific deterrence are important features of the exercise of the sentencing discretion in relation to such crimes and must not yield too readily to the personal circumstances of the offender.
38 I take into account your early plea of guilty, your personal circumstances at the time of the offences, including your alcoholism, drug dependence and psychiatric condition as well as your unstable living conditions. I accept that at the time you committed the offences they were committed against the background of your being affected by alcohol and medication and that they were all committed over a short space of time, the offending was carried out in broad daylight, you made no attempt to disguise yourself and there did not appear to be much planning involved.
39 I also note that your prior history does not involve any offences of violence. On the other hand, the offending indicates a troubling change in your pattern of offending. It is also troubling, of course, that the offences were committed while you were on bail in relation to the matters dealt with in April this year and during the term of a CBO with treatment conditions imposed in March 2012.
40 Doing the best I can to balance all of the above factors, I will proceed to sentence you for the offences. Would you please stand.
41 I find Charges 1, 2, 3 and 4 proven. On Charge 1, handling stolen goods, I sentence you to three months' imprisonment.
42 On Charge 2, armed robbery, I sentence you to 30 months' imprisonment.
43 On Charge 3, armed robbery, I sentence you to three years' imprisonment.
44 On Charge 4, attempted armed robbery, I sentence you to two years' imprisonment.
45 The sentence of three years imposed in respect of Charge 3 is the base sentence. It is the second armed robbery committed in two days and it is a higher sentence than I have given for Charge 2, which was for the first armed robbery, because it showed some limited planning on your part in the sense that you kept the tyre lever from the previous day and took it with you to the petrol station and committed the offence.
46 I order that one month of the sentence imposed in respect of Charge 1 be served cumulatively on the base sentence.
47 I order that six months of the sentence imposed in respect of Charge 2 be served cumulatively on the base sentence.
48 I order that five months of the sentence imposed in respect of Charge 4 be served cumulatively on the base sentence.
49 The total effective sentence is four years' imprisonment.
50 Pursuant to s.16(3)(c) of the Sentencing Act, I direct that the sentence be served concurrently with the sentence you are currently serving and under which you were due to be released on 16 July 2013.
51 I have adopted the recommendation made by Mr Cummins and urged upon me by your counsel that a relatively long period of parole be imposed to allow for substantial residential alcohol rehabilitation. I therefore impose a non-parole period of 18 months.
52 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to these offences, I would have imposed a total effective sentence of five years and fixed a non-parole period of three years in respect of these offences.
53 I declare that a period of 140 days - is that correct ?
54 MS KENNEDY: I'll just show my friend this before I - I calculated it incorrectly as 137. It's actually 157 as at 6 May. It's 157. I said 137.
55 HER HONOUR: You did.
56 MS KENNEDY: Plus nothing. He's serving a sentence, so the last three days don't get added.
57 HER HONOUR: All right. So 157 days. I declare that a period of 150 days pre-sentence detention not including today is to be - - -
58 MS PICONE: Sorry, Your Honour.
59 HER HONOUR: It's all right, just get it right.
60 MS PICONE: Your Honour, the confusion has arisen because of the sentence in April. I understand it was 137 days with nothing to be added on to that due to the sentencing in April.
61 HER HONOUR: All right. So we declare that a period of 137 days - - -
62 MS KENNEDY Yes, Your Honour.
63 HER HONOUR: And do we still say not including today?
64 MS KENNEDY: That's correct.
65 HER HONOUR: All right. 137 days pre-sentence detention not including today is to be reckoned as time served on the sentence that I have imposed upon you and deducted from the sentence you will have to serve.
66 I note that you do not oppose the making of the orders sought by the prosecution for compensation, disposal and taking of a forensic sample. I make the disposal order sought by the prosecution in relation to the items identified in the schedule, which include the tyre lever and the clothes worn by you during the commission of the offences.
67 I make the compensation order sought by the prosecution, firstly that you pay compensation in the sum of $450 to United Service Station of Ferntree Gully Road, Scoresby, and secondly that you pay compensation in the sum of $975 to Apollo Fuel Service Station.
68 Finally in relation to the forensic sample, I am satisfied that in all the circumstances, the making of the forensic sample order is justified because of the seriousness of the circumstances of the offending warranting the order, because the order is not opposed, and because I consider the granting of the order is in the public interest. I therefore order that pursuant to s.464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the data base.
69 I inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
70 PRISONER: Yes.
71 HER HONOUR: Finally, just in relation to the management in custody provision, Ms Kennedy, did you want to say anything specific, or just that he receive mental health assessment and treatment as necessary.
72 MS KENNEDY: That's fine, Your Honour.
73 HER HONOUR: Are there any other orders? Any other matters? We'll just adjourn briefly while the orders are prepared.
- - -
0
0
0