Director of Public Prosecutions v Dowe

[2015] VCC 105

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-14-01721

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRONE DOWE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	11 February 2015
DATE OF SENTENCE:	11 February 2015
CASE MAY BE CITED AS:	DPP v Dowe
MEDIUM NEUTRAL CITATION:	[2015] VCC 105

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Robert Stary Lawyers

HIS HONOUR: 

1Tyrone Dowe, you have pleaded guilty to one charge of armed robbery, one charge of recklessly causing injury and two charges of robbery. Those crimes carry maximum penalties of 25 years, five years and 20 years respectively. 

2You are 26 years of age and have pleaded guilty.  You obviously must get the utilitarian benefit of that plea of guilty.  You do have an extensive criminal history and there is no need to go through that in detail.  Effectively, what has happened is that you have been introduced to drugs and alcohol at a very early age indeed and have been in and out of custody since you were 13.  Your priors involve offending of a similar description, being robberies, violence and matters that are drug-associated. 

3The circumstances of this offending were that, on the afternoon of January 9 2014, you and Shane Glass, known as Rocky, who has been sentenced by me earlier, and Charlie Marks, went to the Safeway in Lakes Entrance.  The three of you decided eventually to go to Bairnsdale after having a few drinks, which you did.  You went to a street known as Hoddinott Street in Bairnsdale, where a Mr Hall resided.  You did not know him.  After you had been in the house for a while, you asked Mr Hall if you could have a chat with him.  You asked him for weed.  He said his cannabis was for himself.  You offered to pay him and asked him for speed.  Rocky then walked in and said to Hall, "Where's your weed", and Hall replied, "Where's your money", put the cannabis on the table and it was grabbed.

4You and Mr Hall then went across the road to one of the neighbours, a Mr Craig Beasley.  Some cannabis was smoked and there was an attempt to get amphetamine from him.  Mr Hall says he received $100 cash from a debt that Mr Beasley owed him and walked out.  He gave that $100 to his stepdaughter, Rebecca.  Around about that time, Mr Glass grabbed Mr Hall, punched him in the face and grabbed him in a headlock.  You became involved in that as well and held a piece of pipe to the back of Mr Hall's head.  He thought it was a gun and screamed out for help and you said, "I'll shoot you if you keep on screaming.". 

5He was searched.  The charge of armed robbery is ongoing in this scenario.  The pipe fell to the ground and Mr Hall realised it was a pipe and not a gun.  He was dragged to his front door.  Rebecca and Kevin Lord, his stepdaughter and her partner, came out and saw what was taking place.  You dragged Mr Hall into the house, threw him to the ground.  He was assaulted by kicking and punching and further violence.  You were telling him you were a gangster from Sydney and knew bikies.  You again produced the pipe; money and phones were demanded and in the end Mr Hall told Rebecca to go and get the money.  Mr Hall ran from the house and Mr Glass pinned him against the car, produced a shotgun shell and told him he had the other half of it in the car.  Mr Hall then broke away and ran to a neighbour's.  Rebecca Lord went and got money from the cash tin and gave it to you and Mr Kevin Lord said that the phones were then taken. 

6That gives rise to the armed robbery of Mr Hall, the robberies of the two Lords and the reckless injury to Mr Hall.  He received stitches to a gash in his head and had two teeth knocked out, he said.  I have read his victim impact statement and take that into account. 

7On 23 July 2014, I sentenced Mr Glass to three years with an 18 month minimum for the same offending.  He had a confessional record of interview and had pleaded guilty at an early time.  Your position is different in that you pleaded guilty at a later time but the question of totality looms very large in your particular sentencing process.  An active custodial sentence is inevitable as offending such as this has to be regarded as serious and general and specific deterrence and appropriate punishment must play a part. 

8Tendered on your behalf was a report from Dr Carla Lechner and I do not need to go into the detail of that.  You are a young Aboriginal man.  You are mildly intellectually disabled; what that actually means, I refer to the decision of Bugney.  You were on the streets by 13 and you have been in and out of custody ever since.  You are still young and the prospects of your rehabilitation, whilst they must be somewhat guarded, I would not see as having been extinguished.  In reality, yours is a totality question.  I will just go through the history of it.

9On 18 May 2011, you were sentenced in the County Court to be in prison for a period of five years and six months, with a minimum term of three years and three months.  That sentence was appealed.  On 7 March 2012, the same head sentence was imposed by the Court of Appeal, but they reduced your minimum term to two years and three months.  At that time, you were to become eligible for parole in February 2013. I'm not sure exactly when that parole was granted, but certainly by 9 January 2014, when these offences occurred, you had been on parole for some time.  You were arrested for these offences and others on 17 January 2014.  On 29 January 2014, the three years and three months parole that was owed was breached and you were reclaimed.  You then, until 20 November 2014, were undergoing breach of parole.  On that day, you were given a 14 month cumulative aggregate sentence in the Magistrates' Court for other matters.  You were not given a minimum term as no doubt you could not have been in the situation where you were undergoing parole. 

10The giving of that sentence effectively suspended the parole period that you were undergoing and that sentence commenced.  That sentence expires on 7 January 2016.  You were allowed 12 days pre-sentence detention for that and accordingly that cannot be used in this particular situation.

11Once you complete that sentence, as it stands before I sentence you, you will then be subject to the breach of parole, which I have to regard as in place.  When that period of time expires it will be 3 June 2018.  You will effectively have no minimum term as such and it will be in the hands of the Parole Board if they ever grant you parole again.  There are grave concerns that they would, but that is a matter for the future and not to do with me.

12After some discussion, what I have decided to do is this, in your particular situation on the charges, I impose an aggregate sentence of 18 months.  I make it very clear that had it not been for the totality question and the breach of parole as well as the 14 months you were undergoing, I would have given you a sentence far more significant than that, more in line with the sentence of the Court of Appeal dated back in 2011. 

13I will direct that that 18 months aggregate be served concurrently with the 14 months sentence that you are currently undergoing.  That means that the parole, which is due to be served upon the completion of a straight sentence, will be pushed back by about seven months.  That will effectively mean that you will still owe all that parole at the conclusion of the 18 months that I impose, but there will have been a degree of punishment from this court and hopefully not a punishment which acts deleteriously towards any prospect of rehabilitation.  In doing so, I am well aware of the principles outlined in the Court of Appeal in the case of Tomguenen and I take that very much into account.

14A s.6AAA in this situation is very misleading, if I can put it that way, because this may not have all occurred, but in any event, just so you understand the pleading guilty saved you a significant period of time, but for your plea of guilty, in this given scenario, I would have sentenced you to be in prison for a period of two years, which would have meant you would do an extra year.  That is what your plea of guilty has saved you. 

15Are there any other orders I have to make?

16MR FARRINGTON:  No.

17MR DOYLE:  I don't think so, Your Honour, none.

18HIS HONOUR:  All right.  Well, as I say gentlemen, thank you for your assistance and the discussion.  I know that on the face of it that is going to look inadequate, but, you know, there is a totality, I just do not see any way around it.  If the parole Board want to parole him, that is their decision.

19Thanks, Mr Farrington.

20MR FARRINGTON:  As Your Honour pleases.

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