Director of Public Prosecutions v Elias
[2015] VCC 969
•16 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00390
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON ELIAS |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2015 | |
DATE OF SENTENCE: | 16 July 2015 | |
CASE MAY BE CITED AS: | DPP v Elias | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 969 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Manning | OPP |
| For the Accused | Mr P. Smallwood | Victoria Legal Aid |
HIS HONOUR:
1 Aaron Elias, you have pleaded guilty to one charge of armed robbery and one summary charge of contravening a conduct condition of bail. The maximum penalty for the offence of armed robbery is 25 years' imprisonment and the maximum penalty for the summary charge is three months' imprisonment. I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in these proceedings.
2
Briefly, the armed robbery occurred at Southbank just after 4.00 am on
23 October 2014. The victim was a tourist from Taiwan. He was to be collected from his hotel to go to the airport at about 4.20 am. While waiting, he decided to go to the nearby 7- Eleven store. As he walked to the store you approached him with two co-offenders. You asked if he had money. The victim was scared and he ran back to his hotel.
3
About five minutes later he decided to return to the 7-Eleven store. He could not see you in the area and he felt it would be safe for him to do so. As he approached the store, you and your two accomplices (Mr Scott and
Ms Omaga) approached him. You were carrying a wooden pole, Scott a wooden pole and Omaga a shiny metal object. You raised the pole and motioned towards the victim. He was very scared and handed over his black waist bag.
4 As the three of you began to move away, the victim grabbed Omaga. Scott proceeded to hit the victim to the arm and the hands with his weapon and the victim tried to enter the store and felt a blow to the back of his head that knocked him to the ground. Scott continued to hit the victim to the arms and body with the pole. The three of you then ran off. The victim suffered a left little finger injury, a small laceration to the right ear, tinnitus of the right ear, dizziness and a superficial laceration to the left forearm. He paid $468.50 for his medical treatment.
5 CCTV footage shows you running from the scene and then, a short time later, rummaging through the victim’s bag. You were arrested and interviewed by the police. You denied involvement in the offending. When told by the police that CCTV footage showed you going through the victim’s bag, and that one of the stolen items was a camera, you said, “There’s no camera. You go ask the victim again, man, because there was no camera. I’m telling you right now, there was no camera we – there was nothing.”
6 Mr Elias, you have committed a very serious offence. You were with two other people, you were all armed, you confronted a vulnerable 65-year-old man in a public place and your co-offender used actual force against the victim. It is only through good fortune that the victim suffered relatively modest physical injuries. In a case of this type general deterrence, denunciation and just punishment are central sentencing considerations.
7 You come before this court with prior convictions for offences of violence. In February 2011 you appeared in the Ringwood Children’s Court on charges of armed robbery, theft from a shop and recklessly cause injury. You were placed on probation with special conditions to attend a day program and accept the support and recommendations of your disability services case manager. The order was breached when you committed further offences of recklessly cause injury and unlawful assault. Those matters were heard in the Children’s Court in September 2011 and you were again placed on probation. This order included a condition that you accept the Disability Client Services (DCS) plan of services dated 6 September 2011.
8 You committed further offences and, at a hearing in the Children’s Court in April 2012, you were placed on another probation order with special conditions that required you to attend educational or training programs, attend drug and alcohol counselling and undertake a psychiatric review. Your last appearance in the Children’s Court was in January 2013, when you were placed on probation with a condition to comply with the plan of services provided by DCS. You successfully completed that order. It does appear that your behaviour was much more settled in 2013.
9 In December 2013, May 2014 and June 2014 you appeared in the Magistrates’ Court for relatively low-level offences. On each occasion, the charges were adjourned for 12 months with conditions that you be of good behaviour and participate in services specified in a justice plan. In committing the current offence of armed robbery, you breached those three orders.
10 After your apprehension on the current offence you were remanded in custody. On 18 November 2014 you were granted bail by a magistrate with a condition that you attend for judicial monitoring on 30 December 2014. I have no doubt that the magistrate was persuaded to grant bail because of the strong support provided to you by DCS. In a report provided to me Mr Smith, a DCS case manager says this, "The DCS case manager supported Mr Elias in his bail application by coordinating a range of community based supports for him. Referrals were made to appropriate services to ensure that Mr Elias had access to supported accommodation, structured day activities to assist him to address his offending behaviour and facilitate new social networks and one-on-one outreach support".
11 The writer explains how supported accommodation was arranged at Furlong House in Parkville; how Brosnan Youth Services offered you skill development programs; and how the Salvation Army were engaged to assist with your drug and alcohol problems, and provide structured social activities and social work support. In addition, it was arranged for you to re-engage with your former Berry Street disability outreach worker. The writer says this. "Whilst he was on bail Mr Elias did not accept the support of any of the services which had been arranged for him. Mr Elias only resided at Furlong House for four nights within the first two weeks after being released on bail, and he did not attend any appointments with the other services. Mr Elias acknowledges the long-standing difficulty he has accepting appointments with other services. Despite the provision of intensive outreach support by the DCS case manager while on bail, Mr Elias did not make himself available to access this support.”
12 On 30 December 2014 you failed to appear in the Magistrates’ Court and a warrant issued for your arrest. That failure to appear is the basis for the related summary charge that I am dealing with in this hearing.
13 You were arrested on a warrant on 22 January 2015 and you have been in custody ever since.
14 I have also been told that on 22 May of this year you pleaded guilty in the Magistrates’ Court to a number of offences that were committed in February, March, August and September 2014. My understanding is that these matters have been adjourned for further plea and sentence on 21 July 2015.
15 Mr Elias, I detail this history because it shows the difficulty you have had in obeying the law. It also shows how hard it has been for agencies to work with you in an effort to stop the offending. I will return to this issue a little later in these remarks. Your criminal history means that protection of the community and specific deterrence are relevant sentencing considerations.
16 I now turn to matters that are relevant to your background and that are relevant in mitigation.
17 You are 20-years-old. You have a significant intellectual disability that has profoundly affected your life.
18 Your mother is a strong support for you. She has endeavoured to support you to the best of her ability.
19 You have had behavioural problems from a very young age. In a 2007 report prepared by Ms Dan, a psychologist from the Department of Education and Training, reference is made to an assessment in 2000 when you were six-years-old that revealed an IQ score of 58. The 2000 assessment was the first of many over the next few years. No doubt these assessments were generated through the Education Department because of the problems you were having within the school system.
20 2002 and 2003 saw a number of assessments. Perhaps the most significant took place in August 2002 when Dr Fullerton, a paediatrician, concluded that it was likely that you fell within the autism spectrum.
21 In her 2007 report, Ms Dan assessed you as having a full scale IQ of 62. This score placed you in the extremely low range of intellectual functioning. She concluded her report by stating, “The results of the cognitive assessment indicate that Aaron is currently performing within the extremely low range of intellectual functioning for a student his chronological age. Other results of the assessment indicate that Aaron’s adaptive behaviour is well below the range expected for a student his chronological age, and that Aaron continues to be within the Autism Spectrum.” You were also diagnosed as suffering from ADHD.
22 You attended a number of primary schools as a young man. Not surprisingly, your primary education has been described as “disrupted”.
23 In 2008 you commenced your secondary schooling at Heatherwood Special School in Donvale.
24 In 2009 your mother referred you to DCS because of the decline in your behaviour at home and at school. You left school without completing Year 10. At the time of leaving school your behaviour was reported as being disruptive and aggressive.
25 Since that time, various other organisations and persons (in addition to DCS) have supported you. From February 2011 to mid-2013 Youth Justice supported you on the series of probation orders that I have already spoken about. You also received outreach support from Brosnan Youth Services. Youth Connections endeavoured to engage you in education programs. They were not successful.
26 In May 2012 you were linked into YSAS. You maintained an involvement with that organisation until disengaging in July 2013. This was an important engagement because of your persistent and heavy use of cannabis and alcohol since your early teenage years. In December 2012 you were allocated long-term funding by way of an individual support package. Your DCS case manager referred you to the Berry Street disability outreach program. This program is "An intensive specialist support program for young people with a disability and associated issues of challenging behaviour, substance abuse and mental health issues”.
27 You were matched with Mr Sherwell who Mr Smith describes as a “Young male worker who represented a positive role model.” You remained engaged with him until June 2014 when you ceased contact. You later said that this was because you were struggling to come to terms with the break-up of a relationship and the death of a family member. In the Justice Plan review dated 10 October 2014 (which is not long before the commission of this offence) the writer explained that although you stopped seeing the Berry Street worker in July 2014, your mother reported that you were doing well. At the time you were living in a bungalow at the rear of her home.
28
In August 2014 you re-engaged with the worker from Berry Street and on
4 September 2014 you had visited Employease in Boronia to discuss participation in a transitional education program. It was also proposed that you would attend at Headspace in October.
29 Your counsel told me that you became unsettled about a week before this offence. Some police had attended at your mother’s home where you were living and left a card indicating that they wished to speak with you, probably about one of the matters which is now listed for plea in the Magistrates’ Court. You left home, started living on the streets and commenced drinking heavily. It was at this time that the armed robbery occurred.
30 I am satisfied that it is highly unlikely that you planned this armed robbery. To the extent that someone was in charge, it was most certainly your co-offender, Mr Scott. Already on that evening he had committed an attempted armed robbery and another armed robbery. He was an older man who had been to prison before and he was desperate for money. He was, on his own description, on an ice bender and I accept that his offending was more serious than yours because he actually used physical force against the victim. These facts, together with your personal circumstances, explain why your sentence will be different to Mr Scott’s.
31 I am also satisfied that on the night in question you had consumed a significant amount of alcohol, and that you were disinhibited when you committed the offence. This gives the offending some context. It does not excuse it.
32 Your counsel submitted that your moral culpability should be reduced, as should the application of the principles of deterrence and denunciation, because of your intellectual disability, autism spectrum disorder and ADHD. In determining this issue, I am required to assess the evidence to determine whether your impairments are shown to have caused or contributed to the offending and, if so, whether you are to be adjudged less blameworthy as a result. The report from Ms O’Meara, forensic psychologist, is relevant to this issue, as are most of the reports that I have already referred to.
33 Ms O’Meara states that your cognitive impairment is not sufficient to affect your understanding of the wrongfulness of your actions or the vulnerability of the victim. This is clearly correct. However, that is not the end of the matter. The reports show that you have a significant intellectual disability. Most recently you were assessed with a full IQ assessment of 65, which falls within the extremely low range. You also suffer, as I said, from autism and ADHD. These cognitive impairments do impact on your decision making and judgement.
34 In her report Ms O’Meara said, “Mr Elias’ intellectual disability and ADHD will have a negative impact on his ability to inhibit automatic responses and to think clearly and make calm reasoned decisions and appropriate judgements.” She also said that your poor impulse control contributed to your offending behaviour, particularly given the involvement of an older co-offender. The DCS Client Overview Report of 25 May 2015 recognises that because of your disability you have difficulties with planning, decision making and impulsiveness.
35 Mr Elias, I am satisfied that your mental impairments did contribute to some extent to the commission of this offence. The amount of alcohol you had consumed was another contributing factor. In this case it is appropriate to allow some moderation of sentence pursuant to the relevant Verdins principles. On the other hand, based on the evidence of your past behaviour and your past inability to work consistently with agencies trying to assist you, I have concluded that your prospects of rehabilitation are not good. This finding does require me to give appropriate weight to the principle of protection of the community.
36 I make two final points on the impact of your impairments on sentencing. First, I accept that there should be an appropriate moderation of sentence to recognise that any term of confinement will be more onerous for you than for someone without your disabilities. Second, I accept that your disabilities have profoundly affected your life and made it a life of considerable disadvantage. For that reason also there should be some moderation of sentence.
37 I now move to the other matters raised in mitigation.
38 You pleaded guilty to the offence. You did so at an early stage in the proceedings. You will be given credit for your acceptance of responsibility. Your plea allows the victim to avoid the trauma of giving evidence and saves the community from the costs associated with a criminal trial.
39 You are a young man who has never received a sentence of imprisonment before. Although I have formed the view that you are not a good prospect for rehabilitation that does not mean that I should ignore the principle.
40 Mr Elias, I have decided that the various purposes of sentencing can best be served in this case by the imposition of a sentence of imprisonment, in combination with a Community Corrections Order. This means that upon completion of an appropriate time in prison you will be released with strong support and supervision. DCS is well aware of your situation and has provided a justice plan at my request. It recommends you engage with DCS case management and accept recommended supports; that you engage with a drug and alcohol counselling services; and that you engage with appropriate vocational, educational and recreational support services.
41 Making your involvement with DCS a condition of a Community Correction Order that also has appropriate special conditions, is one way of ensuring you get the best possible support upon your release. It is to be hoped that whilst you are undergoing sentence you will gain insight into the importance, when you are released, of working with those agencies that are able to assist you.
42 Mr Elias, will you stand please? On the first charge you are convicted and sentenced as follows.
43 Convicted and sentenced to an imprisonment term of 18 months, together with an 18 month Community Corrections Order. The Community Corrections Order will require you to be under supervision; to be assessed for and participate in -drug treatment; alcohol treatment, mental health treatment and offender behaviour programs. You must also comply with the recommendations of the Justice Plan.
44 In relation to the summary offence, you are convicted and sentenced to seven days' imprisonment to be served concurrently with the order made on the armed robbery.
45 I make a declaration that you have served 202 by way of pre-sentence detention.
46 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective sentence of 3 and a half years' imprisonment, with a minimum of two years and three months.
47 So in summary, Mr Elias, you have a sentence of 18 months, 202 days will be deducted from that sentence. After you have completed your sentence you will be released. You will then be on a Community Corrections Order for 18 months, with the conditions that I have outlined. When you are released from prison, you will be required to attend within two working days at the Ringwood Community Corrections Office. You understand that?
48 OFFENDER: Yes.
49 HIS HONOUR: Thank you, you can be seated there.
50 MR MANNING: As the court pleases.
51 HIS HONOUR: Are there any other matters, gentlemen?
52 MR SMALLWOOD: No, Your Honour.
53 HIS HONOUR: Thank you and I thank those from Disability Services who have been here regularly and strongly supported Mr Elias. Thank you.
54 MR SMALLWOOD: Mr Elias has signed that order, Your Honour.
55 HIS HONOUR: Thank you, Mr Smallwood.
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