Director of Public Prosecutions v Edgar

[2016] VCC 49

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00017

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE EDGAR

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2016
DATE OF SENTENCE:	1 February 2016
CASE MAY BE CITED AS:	DPP v Edgar
MEDIUM NEUTRAL CITATION:	[2016] VCC 49

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Armed robbery

Legislation Cited:     Sentencing Act 1991

Cases Cited:Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

Sentence:1 month’s imprisonment and 36-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Mr J. Desmond	James Dowsley & Associates

HIS HONOUR: 

1Jake Edgar, you have pleaded guilty to one charge of armed robbery. 
Armed robbery carries a maximum penalty of 25 years' imprisonment. 

2You are presently 21 years of age, having been born on 20 August 1994, and you were 19 when this offending occurred in May 2014.

3You have a criminal record, about which I will go into more detail later.

4By way of background to this matter, you have been residing at premises in Broadmeadows Road, Tullamarine, with your girlfriend, Emily Booth, and her mother, Dorinda Booth.  Early in the evening of 16 May 2014 there had been an argument between you and Dorinda Booth, after which you and Emily both left the house. 

5The circumstances of the offending are as follows. 

6On 16 May 2014 the victim, aged 18, went to the football at Etihad Stadium with a friend.  They left the stadium at about 10 pm and took a tram and bus back to Tullamarine and arrived at Melrose Drive.  They then walked to the KFC on the corner of Melrose Drive and Broadmeadows Road and walked to the drive-through. 

7Shortly after midnight they arrived at Broadmeadows Kentucky Fried Chicken where they were approached by you.  You were with two other men at the time although they were further back from you. 

8You dropped something as you were coming over towards the victim and his friend, which the victim thought was a pen.  You picked it up and started to run towards them.  The other two men with you told the victim and his friend to run.  They ran off.

9During this incident the men with you were heard to say, "Biz just leave it, we gotta go, we gotta go." 

10You approached the victim and asked to use his phone.  The other two men who had been with you told the victim to give you his mobile phone. 

11You were holding a syringe and said that you would stab the victim if he did not give you the phone.  The victim kept saying he did not want any trouble, removed his SIM card and handed the phone to you.  While this was happening your girlfriend, Ms Booth, arrived. 

12While the incident was taking place you said, "You don't know what my face looks like, do you?" and "You don't know what I look like, do you?"  The victim replied he did not.  You then left, as did the two men who were with you.  The victim then went home and rang 000 and reported the incident to police.

13On 22 May 2014 the victim was shown a photoboard and identified you, saying, "That's the guy, 100 per cent."

14On 20 May 2014 police executed a search warrant at the premises in Broadmeadows Road, Tullamarine.  Various items were found, including four Nike caps, and were seized.  CCTV footage was also obtained from the KFC and showed the victim arrive and you in the area at around the same time. 

15You were arrested on 21 May 2014 and held at the Moonee Ponds Police Station, where you were interviewed and essentially denied involvement in the offence.

16A committal was heard on 7 January 2015, a final directions hearing on
11 September 2015 and the prospective trial was settled on 30 November 2015 on Day 1 of the trial before any evidence was called. 

17Your bail was extended, but revoked by me on 22 January 2016 because you had breached your reporting conditions.

18I now turn to your personal circumstances. 

19As I noted earlier, you are now 21 years old and were 19 at the time of offending. 

20You do have an extensive criminal history for someone so young. 

21Your criminal history commenced at the age of 16 with an appearance at the Broadmeadows Children's Court in July 2011 and then in November 2011, when you were placed on a good behaviour bond for 12 months for drug possession offences.  Some five months later you were again before that court, this time on a charge of robbery, for which you were placed on probation for 12 months.

22In April and May of 2013, you appeared at the Melbourne Children's Court on criminal damage and various assault and violence charges, for which you were again placed on probation, this time for seven months.  You were also ordered to attend for anger management counselling.

23In November 2013, at the age of 19, you graduated to the Broadmeadows Magistrates' Court on weapons and driving charges.  You were put on a community correction order for 12 months.

24In November 2014, at the age of 20, you appeared in the Melbourne Magistrates' Court on criminal damage and theft charges.  The matter was adjourned for 12 months and you were ordered to pay $100 to the Deafness Foundation and to comply with the directions of your Youth Outreach officer as to drug and alcohol treatment.

25Three months later, in February last year, you appeared in the Melbourne Magistrates' Court for threatening to commit serious injury and committing an indictable offence whilst on bail.  You received a 15-month community correction order with conditions including drug and mental health treatment and offending behaviour programs.

26In June last year you appeared in the Broadmeadows Magistrates' Court on threatening to kill, criminal damage and trespass charges, for which you received a 12-month community correction order with a 200-hour community work condition.

27In July last year you appeared in this court, the Melbourne County Court, on assault and attempted robbery charges.  You were put on yet another community correction order, this time for three years, and this time also with a judicial monitoring condition.  I note that your first judicial monitoring hearing was held on 23 October last and the next is scheduled for 7 March this year.

28The matters up to November 2013, when you were put on the community correction order for 12 months on the weapons and driving charges, constitute your criminal record prior to the current offending.  The other matters are subsequent and are matters relevant to your prospects of rehabilitation.  So you are currently therefore serving three community correction orders, including matters subsequent to this offending.

29You have had a fractured personal development, your parents separating when you were 12 months old and you were thereafter being raised by your mother in difficult financial circumstances.  You developed instability in your adolescent years, leaving home at 14 or 15 in the context of parental separation, infrequent access to your father, conflict with your mother and difficulty with formal schooling.  You left school in Year 10.  When you left home you were either living on the streets or couch surfing with friends.  About this time you also began a pattern of regular drug use which developed from cannabis, Xanax and Valium to the point at which by 17 you were injecting heroin daily.

30According to the report tendered from Dr Cunningham, you have no underlying mental health issues and your natural intelligence is sound. 

31You have maintained a steady relationship with your partner, Ms Booth, and have her full support, together with that of your mother and grandmother.  Each of those persons has provided written testimony of your good qualities, also the support you have, your hopes for the future and, in particular, the very great progress they have witnessed concerning your determination to move away from your drug use and to lead an offence-free life.

32Two references were also provided referring to the possibility of paid employment if you are released from custody.

33According to your instructions to counsel and to Dr Cunningham, you have remained drug-free since your release on CISP bail in June 2014.  You were originally prescribed methadone whilst in custody, you continued with that for some time and eventually have managed to avoid any further illicit drug use and the use of the methadone treatment.

34Despite there being no victim impact statement I have no doubt that the victim in these circumstances would have been quite alarmed and distressed.  Armed robbery is a terrifying experience, and an allied threat of a hypodermic needle is a serious feature of such an offence. 

35This type of offending in public places against vulnerable victims is serious criminal conduct.  Considerations of just punishment, denunciation by the courts and general as well as specific deterrence are evidently important. 

36Ordinarily an offender in your position should expect an immediate term of imprisonment and for a significant period.  It is very serious offending and you have committed a succession of serious prior offences, including weapons and drug offences, assault, criminal damage and robbery.  It is an unenviable record.

37You have also committed a series of offences subsequent to the offending before me today, involving threats to kill, threat to commit serious injury, criminal damage, assault and attempted robbery.  I repeat, these are not matters relevant to prior offending, but they do constitute the context of your prospects of rehabilitation.  As I will say later, that has to be balanced against other measures you have taken yourself in order to rehabilitate your own self.

38In mitigation I accept the submissions of your counsel, including that:    

·    you pleaded guilty, thus avoiding the necessity of a trial, having witnesses testify and their evidence challenged

·    you, through your counsel, have apologised and I accept that as an expression of some further remorse

·    you have in the past successfully completed a community-based order

·    you had a longstanding drug addiction and, commendably, have made genuine attempts to manage it and appear to have it at least under control

·    you have maintained periods of regular employment from time to time, involving physically hard work, and you have the prospect of obtaining employment in the near future

·    you appear to have the confidence of people who are prepared to offer you employment

·    you have the support of your partner and your mother and your grandmother

·    your youth at the time of offending, being aged 19, and now your relative youth at the age of 21.

39I conclude that the circumstances of your current position are somewhat exceptional.  There is cogent evidence of very real attempts by you to turn your life around.  You have been undertaking three community correction orders, commencing in February 2015, which comprise an order of 15 months with 125 hours community service, an order in June 2015 for 12 months with 200 hours community service to be undertaken, and on 23 July last year an order for three years with 300 hours of community service.

40This last order was directed by His Honour Judge Gamble of this court and I have read His Honour's reasons for making the order which he did.  I note that there was a judicial monitoring condition imposed and the next monitoring session is scheduled for this March. 

41I have had you assessed for suitability for a further community correction order and you have been assessed as suitable.  There is no evidence that you have breached any of the previous orders.  You have 8 hours of unpaid community work remaining on the first order, 93 on the second and a further 300 on the third.  It appears clear that you have been maintaining the conditions of the community correction orders.  There is no evidence of any breaches, as I say, and you have made a genuine attempt to complete the community work conditions within each of those community orders.

42The concern from a sentencing perspective is that you are seen to have been punished to an appropriate extent, given your background history and the serious nature of your current offending, with the community's interests in not having real attempts to reform being negated. 

43On balance I am satisfied that the public is best served by giving support and encouragement to your own attempts to manage your drug problem.

44The ultimate aim of sentencing is the protection of the public.  At the same time I have to give appropriate expression to the principle of general deterrence, which means to make an example of you in the sentence in order to deter other like-minded individuals.  I am further satisfied that that aspect of deterrence can be ameliorated in these circumstances by the need to give support to and encouragement of your rehabilitation.

45I am first satisfied that the principles expressed in the recent case of Boulton & Ors v The Queen[1] are significantly apposite to the current circumstances before me.  You are a very vulnerable young man in my view, but you have shown dedication to your own reformation and you have already experienced some of the corrosive aspects of the adult imprisonment regime.  It is of the utmost importance, in my view, that this court should encourage the rehabilitative progress you have made and not see it broken.

[1]Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

46The sentence I am about to impose might be initially considered by some as too lenient.  In my view it is not, because to add much more to your current burden will have the very real potential to crush you and prevent you from undertaking the paid employment options you have and cause a breakdown in the rehabilitative process.  I am, therefore, not going to impose any further work conditions on the community correction order that I intend to order.  You will be under the supervisory terms of the community correction order for a period beyond that imposed by His Honour Judge Gamble.

47On Charge 1 of armed robbery, you are convicted and sentenced to one month's imprisonment.  The sentence starts today.

48As to the term of imprisonment, you were in police custody from 21 to 22 May 2014 and then on remand until 13 June 2014 when you were granted bail. That bail was revoked on 22 January this year, so pursuant to s.18(4) of the Sentencing Act 1991 Victoria, I declare that the period of 34 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

49On Charge 1 of armed robbery, you are also ordered to serve a community correction order for a period of three years.  The community correction order commences today and ends on 31 January 2019.  The Corrections Centre you will attend is the Carlton Community Correctional Service at
444 Swanston Street, Carlton, and you must attend there within two clear working days after the commencement of this order, that is by 4 pm this Wednesday 3 February.

50All the mandatory terms of a community correction order apply and the additional conditions I impose are that:

·    you be under the supervision of a Community Corrections Officer;

·    you undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager;

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager; and

·    you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation, and that may include employment, educational, cultural and personal development programs as directed by the regional manager.

51It is quite clear to me, Mr Edgar, that you realise and know the mandatory terms of the community correction order.  They have been explained to you many times before, but it is necessary for me to repeat them now so it is quite clear that you know and recognise what they are. 

52The mandatory terms are that :

·    you must not commit another offence for which you could be imprisoned during the time this order is in force;

·    you must report to and receive visits from a Community Corrections Officer;

·    you must report to the Community Corrections Centre, that is the Carlton Centre, within two clear working days of the order starting and, as I have already indicated, that is 4 pm this Wednesday 4 February;

·    you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and

·    you must obey all lawful instructions from and directions of Community Corrections Officers.  Such directions may be given either orally or in writing. 

53Do you understand and agree to those conditions, Mr Edgar?

54OFFENDER:  Yes, Your Honour.

55HIS HONOUR:  If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Carlton Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

56However, I must warn you that if you breach any condition of this order, you will be brought back before me.  One of the options open to me is to cancel the order and re-sentence you on the original charge.  In your circumstances that will mean that a lot of the material that I have accepted and applied in your case in making the sentence that I have may be undone, may be broken, and you will be re-sentenced on the original charge most likely.  I may also deal with you in that case for the breach itself as an offence and that carries a maximum term of imprisonment of three months. 

57Do you understand the consequences of breaching your community correction order?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  I will ask you to sign the community correction order shortly.

60Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is two years' imprisonment with a minimum period of 18 months to be served before eligibility of parole.

61HIS HONOUR:  I note that since the pre-sentence detention exceeds the term of imprisonment, it is my intention by the sentence that I have imposed that
Mr Edgar be released forthwith.  I understand that there will be a need to go through the reprocessing.  The term of imprisonment has actually been served by the taking into account of the pre-sentence detention.  Do you understand that, sir?

62CUSTODY OFFICER:  Yes.

63HIS HONOUR:  I will pass the terms of this order to your counsel now and you can just make sure Mr Edgar understands that, Mr Desmond.

64MR DESMOND:  Yes.

65(Community correction order signed and acknowledged.)

66HIS HONOUR:  Mr Edgar, just before I leave the Bench, just stand up for a minute, there is something I want to say.  Over the years the record indicates that you have been shown considerable leniency by the courts, consistent with your youth in the earlier stages.  For really quite serious offending you have received probation, you have received good behaviour bonds, you received probation again.  At the Magistrates' Court you have had community correction orders for a series of serious offending.

67You have received the indulgence that you have from me today because, as it is expressed in the terms of the sentencing remarks, of what you have done since you were released on bail and the CISP program.  It is tough to turn things around when you have been through the background that you have and that is why I have seen it as fairly exceptional that you have been able to maintain what you have done and I do recognise, as I indicated in discussion with counsel, that it is not an easy thing to maintain all the conditions when you have successive community correction orders and you are running from place to place trying to maintain those things now. 

68I understand that, but you really do have to understand that there has been a real line in the sand that is drawn and the courts have given you the chance to maintain the good work that you have done.  You have got to maintain that.  Maintaining that means keeping away from the drugs.  If you get yourself into strife with people that you otherwise know in that area, or you feel yourself vulnerable again to that type of process, you have got to use the options that are open to you under these community service orders.  You have got people there that can support and help you, rather than fall back into your earlier ways.  There will be challenges but if you maintain it you are going to be able to move this - get through, all right.

69OFFENDER:  Yes, Your Honour.  Thank you.

70HIS HONOUR:  All right. 

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