Director of Public Prosecutions v Egan

[2017] VCC 2029

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

KOORI COURT DIVISION

CR-16-01322

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX EGAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	19 December 2017
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v Egan
MEDIUM NEUTRAL CITATION:	[2017] VCC 2029

REASONS FOR SENTENCE

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Subject:Criminal law – sentencing – armed robbery and related offence commit an indictable offence whilst on bail – youthful offender – one year sentence to be followed by a two year Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr R. Thyssen	Stuthridge Legal

HER HONOUR:

1Alex Egan, you have pleaded guilty before me to one charge of armed robbery, which occurred on 30 September 2015 at Swan Hill and in addition, you have pleaded guilty to a summary charge of committing an indictable offence, namely armed robbery whilst on bail and that was transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009.

2I will proceed to sentence you on the basis of the summary of prosecution opening that was read by Ms Taylor the prosecutor at today's sentencing conversation.

3You were 19 at the time of the offending.

Circumstances of offending

4You attended on the Pre-Mix King Liquor Store, which is located at 18 McCrae Street, Swan Hill, at around 7 pm.  You waited until the store was empty and then you entered armed with a knife.  You were approached by the store attendant, who was working alone, namely Michael Klomp, who came to your assistance.  You then removed a large kitchen knife. The blade measured approximately 25 centimetres in length. You had it concealed under your clothing. You held the knife up in the air towards Mr Klomp and told him, whilst pointing the knife blade at him, "This is a holdup."

5Mr Klomp held up his arms and pleaded with you not to hurt him.  You then walked up to him and directed him to walk behind the service counter to the cash register, where he emptied the contents of the register, approximately $3,235 into a brown bag, following which you thrust the knife towards him and demanded that he keep quiet.

6You then ran away with the moneys. You ultimately purchased a Holden VS Commodore (“the vehicle”) with some of the cash, being the proceeds of the armed robbery.

7On the following day, the police found the vehicle abandoned, following a chase.  You were not arrested until 8 January 2016 at Shepparton.  You were interviewed, but made no admissions.

8Your matter does have a rather contorted procedural history, which is necessary for me to repeat.  You were arrested on 8 January 2016 and remanded in custody on 19 February 2016.  You were sentenced at the Bendigo Magistrates' Court in relation to a consolidation of matters involving three thefts, one assault emergency worker on duty, one obstruct emergency worker on duty, two unlawful assaults, use obscene language in a public place, intentionally damage property, commit indictable offence whilst on bail, obtain property by deception three charges and possess dangerous article in a public place.  You were sentenced to three months' imprisonment and 41 days was declared as presentence detention.  On 7 April 2016, that sentence lapsed.

9On 28 July 2016, you were committed to the County Court, following a committal hearing at Swan Hill Magistrates' Court.  The matter then proceeded in the Koori Court division of this court and ultimately the matter was listed for a plea hearing before His Honour Judge Parsons on 7 November 2016.

10You were arraigned and following submissions, a report from a psychiatrist with Forensicare was requested.  Thereafter, there were a number of administrative hearings and further plea hearings and ultimately, you were released on bail on 21 March 2017 so that you could attend Bunjilwarra, a residential facility for drug treatment and rehabilitation.

11Your matter was due to be heard again on 29 May 2017.  You were a resident at Bunjilwarra from 21 March 2017 to 16 May 2017.  You were exited from the program because of behavioural issues that arose.  Otherwise, you were fully compliant with the treatment orders. I will speak about your results concerning Bunjilwarra shortly.

12After you were exited, an application to vary bail was lodged.  At that time, Judge Parsons was sitting in the Geelong County Court.  Ultimately you did not attend court when it was called in the afternoon of 29 May 2017. You were arrested on 8 December 2017, pursuant to a warrant that had been issued earlier because you did not attend court in accordance with your bail on 19 May 2017.  Then the matter was taken over by this Court in the Mildura division of the County Koori Court and a plea hearing was conducted on 19 December 2017 before two elders.

13In essence, there is 257 days presentence detention, plus you have undergone three months' sentence in respect to the unrelated summary matters, which I have taken into account in a general sense, in terms of totality.

14Your matter proceeded today with a sentencing conversation held with Uncle Peter Petersen and Uncle Mark Bland.  Previously you admitted your criminal history.  It commenced when you were aged 12 and there are some nine court appearances in total.  You have been dealt with for a variety of offences, including burglary and theft, dishonesty charges and includes one previous attempted robbery in 2011, when you were aged 14 and other crimes of violence, driving related offences and drug related offences.

15There have been a variety of dispositions imposed by the Children's Court in the past, including probation, youth supervision orders and youth justice centre orders.  It is apparent that you have spent quite a considerable time in custody, pursuant to youth justice orders in the past.

16At the time of this offence, you were 19 and you are now aged 21.  You are a youthful offender and therefore rehabilitation is an important sentencing factor.  You are a person of Wemba-Wemba and Yorta Yorta background.  Most of your family, including your mother, live in Shepparton, but your father lives in Robinvale.  He is aged 49 and is unwell. He has chronic health issues associated with alcoholism.  It is proposed on your release that you will go and live and care for your father.

17Your girlfriend, Jana Johnson, was present in court and is supportive of you.  You have been together as a couple since May 2017, but have known each other for a lengthy period of time.  She stated during the sentencing conversation that when you do not use drugs, you are a different person.  She also said that she spoke with your father last night and he wanted to communicate to you that he wants you to stop offending and he wants you back home to be there to support him.

18There has been a significant background of family difficulties that are detailed in the history recorded by Dr Neil Waring, Senior Registrar, Forensic Psychiatry, Forensicare, and his report is dated 13 December 2016.

19I do not propose to recite the full details of that report, but I note in his opinion and recommendations he says:

"By your account, your early life was marred by parental separation, exposure to violence within your extended family and repeated family relocations."

20You have many siblings and it appears your mum was unable to provide adequate care to you and your twin brother.  You were fostered for several years in childhood.

21It is likely that the high degree of social instability contributed to early behavioural problems, which at school limited your educational attainment.

22You left school at an early age, became involved in an older deviant peer group and soon began offending and using alcohol and illicit drugs.  You have been incarcerated on several occasions and your history of employment has been limited.

23In your late teens you began using methamphetamines and the use persisted in combination with alcohol dependence.  Psychiatric diagnosis: amphetamine-like substance use disorder and alcohol use disorder, both of which could be classified as severe and in early remission in a controlled environment.

24I have had regard to the principles set out in Bugmy v The Queen,[1] where the majority of the High Court held, that the effects of a background of significant deprivation do not diminish over time and further serious offending, and are to be given full weight as factors for consideration in sentencing.

[1][2013] HCA 37.

25You are a twin and you and your brother are the youngest of nine children.  One child, a sister, died in 2003 in tragic circumstances.  Your parents separated when you were very young and you have been raised largely by your mother.  You have moved with your mother and siblings a lot, living between Echuca, Swan Hill, Shepparton and Bendigo and as was stated earlier, there has been a lot of exposure to violence amongst your siblings and between aunts and uncles.  A paternal aunt cared for you for about two years from age seven and then you were returned to your mother's care.

26You have had little by way of post-primary schooling and left school after completing Year 7.  You have little formal work experience.  There was one short term of employment noted at Barmah doing some land care.

27You have experienced chronic alcohol and drug abuse from around the age of about 12.  In 2014, you had treatment at Rumbalara, Shepparton, for drug and alcohol rehabilitation, for about four months.

28You have had significant relationships in the past and a child born to one of your past relationships sadly died some four years ago and you are still having trouble coping with that loss and suffer some depression.

29I have taken into account the powerful combination of mitigating factors that are relevant.  I have had regard to your plea of guilty.  It has real utility.  It was entered at an early stage at the committal hearing on 28 July 2016 at Swan Hill Magistrates' Court.  By your plea, the victim Michael Klomp has been spared the trauma of having to give evidence at committal and trial.  You also saved the cost and inconvenience of the trial.  You have facilitated justice and your sentence will be discounted accordingly.  I accept the plea is reflective of genuine remorse and an acceptance by you of full responsibility.

30You were genuine in your participation in the sentencing conversation today.  You engaged respectfully with the elders: Uncle Peter Petersen and Uncle Mark Bland.  They both condemned your violent acts and emphasised that such acts are not tolerated by your community.  You need to win people's trust back and think about your actions.  They both urged you to sit down and talk to respected elders, to obtain guidance for the future.  They said that it was important that you abstain from drugs and be active in seeking help to deal with your issues and that there was no shame in doing that.

31Your path to recovery will be a long one and there is no quick fix.  Importantly, they both told you that you are still a very young man who has a future ahead and that you should take care of yourself and build yourself up.

32I have had regard to your conduct following your offence.  This is your first time and first experience of being held in adult custody. Mentally you struggled with being in adult prison.  I have taken into account the difficulties that you have experienced.

33You have nonetheless been productive whilst in gaol.  You completed a Food Handling course and participated in Koori education and art courses and attended some AA meetings.

34Following your release on conditional bail, you attended Bunjilwarra residential rehabilitation and healing service.  You were there between 21 March 2017 to 16 May 2017, during which you engaged in all programs, had clear urine samples congruent with you not using drugs and you had respectful engagement with Melanie Canning, psychologist, who saw you weekly.

35You obtained your learners permit so that you can ultimately obtain your driver's licence.  So, all very productive.

36I have taken into account your time spent at Bunjilwarra as quasi-custody and have moderated your sentence accordingly.  Sentencing courts in Victoria must now take into account the punitive element of residency in a rehabilitation facility, separately and in addition to, any rehabilitation achieved during the residency.[2]

[2]Akoka v The Queen [2017] VSCA 214.

37There is strong support for you in the community from your partner Jana and you also have the prospect of engagement with Mark Hield, a mental health worker, who is located at the Murray Valley Aboriginal Corporation Health Service, Robinvale.

38You now say that you want to turn your life around and that you have expressed a desire to play football.  You have also emphasised your desire to stop using drugs and offending.

39Overall, I accept that you do have reasonable prospects of rehabilitation.  This is, however, dependent on you, making good your expressed desire not to use drugs and to seek further drug and alcohol treatment.  I accept that you are at a stage where you have begun to change your lifestyle and that importantly for the future, you will need further support.  Therefore, I have structured the sentence in order to give effect to that goal.

40I am satisfied that you have taken positive steps toward your ultimate rehabilitation.  You are detoxed from drugs and currently you have a positive attitude for the future.

41Your ultimate rehabilitation is very important, not just to you individually, but also to the community, as it offers the community the best protection and ensures that the risk of your reoffending is thereby reduced.

42Your offending is nonetheless still a very serious example of this sort of offence of armed robbery.  You attacked a “soft target”, armed with a knife, with which you terrified the attendant into submitting to your demands for money.  He did not file a Victim Impact Statement, but I did hear from the prosecutor today, reading from his statement.  It is clear that your actions petrified the victim and that he really feared for his life.

43Both general and specific deterrence are relevant sentencing considerations and the fact that you breached bail conditions by committing this armed robbery is an aggravating feature.

44Yours is a difficult sentencing exercise, but what makes your case somewhat unusual is the efforts that you have made to address your underlying offending behaviours.  You are a young Aboriginal man who has had significant disadvantages over your formative years.  I have had regard to the principles set out in The Queen v Mills[3] and I have also had regard to the principles set out in The Queen v Steelie Morgan.[4]  I am also mindful of what was said by the Court of Appeal in the guideline sentencing judgment of Boulton v The Queen,[5] where the court there spoke about the negative impacts upon imprisonment and youth. It was accepted that a Community Correction Order can be punitive and capable of deterring others and providing for specific deterrence.

[3](1998) 4 VR 235.

[4][2010] VSCA 15

[5][2014] VSCA 342.

45It is important that a sentencing court looks to the future, as well as to the past and there is real benefit to the community at large, as well as to you individually and your family if future criminal activity can be avoided.  Imposing just punishment, I have had regard to the seriousness of the offending and to all the factors that I have highlighted.  Could you please now stand Mr Egan?

46On the one charge of armed robbery, you will be convicted and sentenced to 12 months' imprisonment, to be followed by a two year Community Correction Order in the terms that have already been explained.

47I note that order was sought by Mr Thyssen, your counsel and Ms Taylor on behalf of the Crown this morning indicated that a term of imprisonment, to be followed by such an order was within the sentencing range available to the court, but she submitted the time served to date was not sufficient to mark the seriousness of your offending and in effect, my sentencing of you today reflects that submission being accepted.

48In relation to the Community Correction Order, the special conditions are that you undergo supervision, treatment and assessment for drug addiction and testing, treatment and assessment in respect to mental health and also in respect to any other programs addressing offending behaviour.

49You have already had explained to you how a Community Correction Order works and through your counsel have indicated you understand the effects of the conditions of such an order and you have consented to it being made and I have also explained to you directly the consequences of a breach of such an order. On the summary charge of commit an indictable offence whilst on bail, you will be convicted and sentenced to one month imprisonment.

50I make a declaration of presentence detention of 257 days and direct that that be entered into the records of the court and I make a declaration pursuant to s.6AAA, but for your plea of guilty, I would have imposed a sentence of imprisonment of three years, to serve two years.

51Finally, in relation to the s. 464ZF order, have you got instructions?

52MR THYSSEN:  I'll just seek those, Your Honour.

53HER HONOUR:  Yes.  There's no other ancillary orders, is there?

54MS TAYLOR:  No, Your Honour.

55HER HONOUR:  Good.  Here is the order.

56MR THYSSEN:  It is not opposed, Your Honour.

57HER HONOUR:  All right.  So that order will be made.

58Having regard to the seriousness of the circumstances of the offending, I consider such an order as warranted.  I have taken into account Mr Egan's prior convictions, the fact that the order is by consent and I consider the granting of the order is in the public interest.

59All right, so the only thing I need to get you to do now, Mr Egan, is for you to sign the order, just to confirm what we have said in court and I have got to tell you, in terms of the last order that was made, you will be requested by police to provide a scraping from your mouth with a little cotton bud.  They will give it to you.  Just put it in your mouth.  As long as you do that, that complies with the order.  I have to tell you, if you do not comply, they can use reasonable force and take the sample by blood, but hopefully that will not be an issue.

60All right, so Mr Thyssen, can you just go through that with your client and get him to sign that please and once that is done, we are completed. 

61Thank you to everyone.  It has been a long and tortuous course.  I am glad it is finally over and that we have finished.  So, all the best.

62OFFENDER:  Thank you.

63HER HONOUR:  Thank you.

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