Director of Public Prosecutions v Doak

[2015] VCC 548

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00339

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEWIS HARRIS DOAK

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	1 May 2015
DATE OF SENTENCE:	1 May 2015
CASE MAY BE CITED AS:	DPP v Doak
MEDIUM NEUTRAL CITATION:	[2015] VCC 548

REASONS FOR SENTENCE
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Subject:         Criminal law - sentencing -
Catchwords:  Theft, armed robbery, possess a drug of dependence - summary charges -       deal with property suspected to be the proceeds of crime, attempting to   intimidate a witness, possess a controlled weapon.
Legislation Cited:
Cases Cited:
Sentence:      Combined sentence of imprisonment and community corrections order      imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Lewis	Vaille Anscombe, Solicitor for the Office of Public Prosecutions
For the Offender	Mr S. Northeast	Michael Brugman Lawyers

HER HONOUR: 

1Lewis Doak, you have pleaded guilty before me on indictment to two charges of theft, one charge of armed robbery and two charges of possession of a drug of dependence. In addition summary charges were transferred pursuant to s.145 of the Criminal Procedure Act 2009, and you pleaded guilty to four summary matters, namely two charges of dealing with property suspected of being the proceeds of crime, one charge of contacting a witness attempting to intimidate him knowing that he has taken part in a criminal proceeding, and one charge of possession of controlled weapons without lawful excuse.

2The crimes are serious, and that is evidenced in the maximum penalty that is applicable, and in particular,  in respect to armed robbery the maximum penalty that I may impose today is 25 years' imprisonment.  In respect to theft the maximum penalty is ten years' imprisonment.  In respect to dealing with property suspected of being the proceeds of crime it is two years' maximum, harass a witness 12 months' imprisonment or 120 penalty units, possess a controlled weapon without lawful excuse is 12 months' imprisonment or 120 penalty units, and in relation to possession of drug of dependence, having regard to the small amount of drugs found in your possession at the time of your arrest, and the surrounding circumstances and the other evidence, including the photographs, I am satisfied on the balance of probabilities that the possession was for personal use only, and not possession for any purpose related to trafficking, therefore the lower penalty of 30 penalty units or one year maximum imprisonment applies.

3The Crown Prosecutor sought orders for disposal of the various weapons and drugs and paraphernalia and clothing located in your vehicle at the time after your arrest, a forfeiture order in respect to the $300 cash located on you at the time you were arrested, a compensation order in the sum of $470 to Christopher Colbert and a compensation order for $40 payable to Outdoor Sportsman.  Those orders were not opposed and orders will be made in those terms.

4

Mr Doak, at the time of your offending you were 18.  You are now 19.  You are therefore a young offender and your rehabilitation is very important in any sentence I may impose, and I have had regard to the principles set out in

R v Mills[1]

. 

5There was a context to your offending.  You had at that time a significant drug habit and you were using ice daily.  You had abandoned your home and employment as an apprentice carpenter and you were living an itinerant lifestyle, effectively living in your car or couch surfing. 

6You do have an admitted prior criminal record.  Those matters were related to two appearances, one on 9 September 2010 at the Children's Court, Geelong, and one at the Magistrates' Court, Geelong on 17 April 2014.  Those appearances were effectively in relation to matters associated with graffiti.  On the first occasion "without conviction" your matter was adjourned for six months upon you entering into a good behaviour bond, and on the second occasion "without conviction" you were fined $300.  Those matters are of little relevance in formulating the appropriate sentence that I must impose today.

7I have had regard to the objective nature and gravity of your offending, and in particular the armed robbery.  The victim in the matter, Christopher Colbert, is an acquaintance of yours.  He is aged 22.  You met him through friends, but you had only met three to four times previously.

8The armed robbery offence is the most serious offence on the indictment and it is in my view a serious example of this type of serious offence.  You threatened the victim that you would stab him with a knife, which you produced, unless he provided to you his PIN number so that you could withdraw monies from his account.  He did so fearing that you would carry out the threat.  Thereafter there were a series of exchanges between yourself and Colbert with you berating him and telling him that he provided to you the wrong PIN number.  At times you were very aggressive towards the victim and after withdrawing funds initially from the Commonwealth of Australia ATM you then drove to another ATM, forcing him to accompany you so that you could be shown his account balance.

9You did not believe the victim and made unsuccessful attempts to access his account resulting in the card ultimately being seized.  You then drove the victim back towards the place where you had met that evening, pulled over and let him out.  He walked back to the house to get his car and on arrival he observed you in the driveway at the side of your vehicle.

10He told you that he wanted his things back, but you declined because you did not have any money for him.  He asked for his phone back and you threw it at him.  He asked you why you had taken his money, and you mentioned that you and another male had needed money to pay back a debt, and you told him to leave and produced the knife again.

11On his return home the victim immediately checked his bank balance and reported the matter to the police. 

12On 5 November 2014 you were arrested in relation to your involvement in relation to the armed robbery and at that time a search of your vehicle was conducted and certain items were located.  In the course of the investigations the police obtained information about the remaining charges on the indictment.   I propose to sentence you on the basis of the Crown opening that was not disputed in relation to those matters.

13When you were arrested you were taken to the police station at Geelong and interviewed.  Prior to the interview you were searched and $300 cash was found in your possession.  During the interview you made a number of denials in relation to the matter dealing with Mr Colbert.

14You admitted that you had called Mr Colbert on 3 November 2014, but denied making any calls to him at around the time he said he was threatened.  You made admissions in relation to the drug related offending and the cash that you had on your person, but otherwise you made denials in respect to the remaining matters.

15The consequences of your offending has been quite significant for Mr Colbert.  He provided a Victim Impact Statement that was read to the court.  He was obviously very frightened and fearful of what happened on that occasion, had trouble sleeping following the incident and was very fearful of reprisals.  That fear would have been exacerbated when you rang him and threatened him, demanding that he withdraw his complaint. 

16Apart from your heavy ice use you have no other known mental health issues.  The report of Mr Matthew Staios, Consultant Psychologist, dated 23 March 2015 details that you do have however a longstanding history of polysubstance abuse commencing using marijuana at age 14, your use escalated at age 17, at which time you reported using about 7 grams weekly, and at 18 you started using amphetamines, one point daily, and you used for six months leading up to the offending.  Currently you are reportedly abstinent from all drugs. 

17You are strongly supported by your family, both parents, your brother and an uncle and family friend were all present at the plea hearing and are willing to assist you upon your release.

18You come from an unremarkable background.  Your parents are both professionals, your mother a financial adviser and your father a builder, and you were educated to Year 10 level at St Joseph's College.  You entered a three year apprenticeship in carpentry with your father's business and you are due to complete your apprenticeship in May of 2016.

19To date your results have been excellent, as set out in the record provided from Gordon Institute detailing your results in Certificate II Carpentry.  Your father remains supportive and will continue to assist you to complete your apprenticeship.  You are able to return home to live.

20

You have now spent a total of 177 days in custody since your arrest on

5 November 2014.  Almost all of that time has been within an adult custodial setting.  The experience has been a difficult one for you and this is the first time you have been in any gaol setting.  You are a relatively young man, of small stature and you have had real difficulties in the prison system with other people standing over you.

21You now realise the error of your ways and have written to the court stating that you are remorseful for what you have done, that you want to continue to remain drug free, are willing to undergo counselling and drug testing, committed to getting your life back on track, and you want to demonstrate to all that you are a capable and responsible person.

22You have also written an apology to Christopher Colbert where you seek to apologise for the awful and unforgivable things that you have done to him.  You offer no excuse for what you have done and you hope that he will accept your apology.  You say that you intend to pay back the money that you took from him and also to give back what is rightfully his.

23You say that he did not deserve what happened to him that night, nobody does, and you explained that you were in a bad place using drugs, but you know now and you say, that you are better than this and the fact that you used drugs did not justify what you did.  You say, "I know I am better than this and I want you to feel safe because being in gaol has really opened my eyes and you deserve better.  My deepest apologies, Chris."

24On your behalf Mr Northeast submitted, and I accept, that there are a number of mitigating factors in your favour that I have taken into account.  Your plea of guilty was entered at the earliest opportunity at committal mention and you therefore spared all the witnesses, especially Chris Colbert, the trauma and inconvenience of having to give evidence on your trial.

25There is real utility in your plea and you have facilitated justice and your sentence will be discounted accordingly.  Further I accept the plea does indicate genuine remorse and an acceptance of responsibility on your part.  I am also satisfied that you have spent your time in custody productively, you have attended Narcotics Anonymous and the GROW program and there is evidence of you having completed drug courses, youth substance use and emotional regulation program and a 12 hour youth relapse prevention program in prison.

26In addition you have done some general education certificates and a certificate in providing basic emergency life support and participating in workplace safety arrangements.  So overall, having regard to your post-offence conduct since you have been in custody, your expressions of remorse and your commitment to change, Mr Doak, I consider that your risk of re-offending is low provided that you do comply with your stated goal of not using drugs, and also I consider your prospects of rehabilitation are good.

27It is important in any future program for your rehabilitation that the providers have regard to what is set out in the psychological assessment prepared by Mr Staios in terms of what he says needs to be done to strengthen your mental health and reduce of your risk of recidivism moving forward.

28He recommends referral to a psychologist to address issues related to drug abstinence and withdrawal and treat associated anxiety symptoms.  He also says you presented with some problematic personality traits and there is a need to monitor that in terms of recidivism.  He suggested a referral to Barwon Youth Drug and Alcohol Program to reduce risk of drug relapse, referral to an employment agency to explore vocational options and also referral to a case manager to ensure these recommendations are implemented, and to explore appropriate recreational pursuits with pro-social peers.

29That report will be made available to Corrections and every effort should be made to ensure that his recommendations are implemented so as to give you the best opportunity to continue your rehabilitation in the community.

30In addition to your rehabilitation prospects I must have regard to the need to emphasise general deterrence and also specific deterrence.  In all the circumstances I consider the imposition of time served on gaol, combined with a Community Corrections Order is appropriate punishment in relation to the armed robbery charge, and as I have indicated I propose to convict and fine you in relation to the remaining charges on the indictment and the summary matters.

31I have already outlined to you the program special conditions that I will require for the Community Corrections Order and I repeat those.  They are 150 hours community work, the term is five years from today's date, there will be a requirement for drug treatment, assessment and monitoring, supervision and judicial monitoring.  You will be required to appear before me in six months' time on Friday 6 November 2015 at 10 am, and that will be here at this court in Geelong. 

32All of those conditions have been put in place to operate specifically to deter you from repeat offending.  I have already explained the consequences of breach.  That is a breach itself is an offence punishable by three months' imprisonment, and you face the prospect of being re-sentenced for the original offending.

33Ultimately, I must impose just punishment and formally on behalf of the community denounce your behaviour.  What you did on the occasion that you offended in relation to Christopher Colbert is serious, as I have already indicated, and you must be punished severely for that.

34I will now announce my sentences.  Could you please stand, Mr Doak.  On the theft, Charge 1, you will be convicted and fined $500.  On the armed robbery, Charge 2, you will be convicted and ordered to serve 177 days imprisonment, which is in effect time served, and in addition a Community Corrections Order will be imposed for five years on the conditions already indicated, 150 hours community work, drug treatment and assessment, supervision and judicial monitoring.

35Charge 3, the theft, convicted and fined $500.  Charge 4, possess drug of dependence, methylamphetamine, convicted and fined $500.  Charge 5, possess drug of dependence, MDMA, convicted and fined $500.  So that is a total of $2000 on the indictment for the fine.  In relation to the summary matters, Charge 8, you will be convicted and fined $300.  Charge 10, the charge dealing with the harassment of Christopher Colbert, you will be convicted and fined $2000.  Charge 16, deal with property suspected of being the proceeds of crime, convicted and fined $500, and Charge 17, possession of controlled weapons without lawful excuse, convicted and fined $500.

36Total fines for the summary matters are $3300, so the total amount for the fines on the indictment and the summary matters combined to $5300.  Do you want a stay on that, Mr Northeast?

37MR NORTHEAST:  May I seek a stay, Your Honour?  You don't entertain part payments at all?

38HER HONOUR:  He can organise that with the Registrar, but I will allow a stay of six months.

39MR NORTHEAST:  Thank you, Your Honour.

40HER HONOUR:  Yes.  He can sort out what he needs to do. 

41I make the Disposal Order sought, the Forfeiture Order sought, the Compensation Order in favour of Mr Colbert for $470, the Compensation Order in favour of Outdoor Sportsman for $40. 

42In relation to s.6AAA do I have to make a declaration, Mr Lewis?

43MR LEWIS:  It appears so, Your Honour, because of the 177 days.  A good point my instructor reminds me, Your Honour also has to declare the 177 days.

44HER HONOUR:  I will declare 177 days pre-sentence detention.

45MR LEWIS:  6AAA, Your Honour, because the section picks up any sentence that includes a term of imprisonment, it means that it applies to this set of circumstances.

46HER HONOUR:  But for the plea of guilty I would have convicted and sentenced you to two and a half years' imprisonment.  I think that covers everything.

47MR LEWIS:  I believe it does, Your Honour, yes.

48HER HONOUR:  I understand my associate has been busily preparing all the necessary orders for me.  I have signed the Order.  If you could get your client to sign it, Mr Northeast?

49MR NORTHEAST:  Thank you, Your Honour.

50HER HONOUR:  Once you are processed - I understand you take him downstairs and process him - you will be free to go, Mr Doak.  I think this evening you have got a lot of explaining to do to your parents.  They have been incredibly supportive to you.  In this job that I have had now for some 13 years it is not often that we have people like you come before the courts.

51Usually it is people who have had incredibly hard lives.  You have had a wonderful life to date.  You have had every opportunity.  You have got a wonderful, supportive family.  They have provided a good home for you.  You have been to college.  You have got an apprenticeship.  You have got skills.  You have got work.  That is more than what most people who come before me have.  Frankly you do not know how good it is.

52You have got to start appreciating the life that you have and live the life that you have.  Your mum and dad have probably suffered incredibly hard as a consequence of your actions.  What I would like you to do for me in the next six months is just demonstrate that you can actually live the words that you wrote.

53One of the nicest pieces of feedback I have ever had as a judge was from somebody not dissimilar to yourself, but he was from a home that was incredibly difficult.  He had had a lot of tragedy in his life.  He had done something very similar to what you did, committed an armed robbery, but I did not send him to gaol.  Twelve months later I got a letter from his father just telling me what had been achieved in that 12 months, and it was remarkable, it really was, given his situation.

54You are streets ahead.  As I said to you before, it is going to be hard.  There will be times when you will be really tested, but you have just got to do it.  Do you understand that?

55PRISONER:  Yes, Your Honour.

56HER HONOUR:  I hope to see you in six months' time and I hope that it is a good report.  We can adjourn.

[1] [1998] 4VR 235, 241

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