Director of Public Prosecutions v Ellis
[2017] VCC 1002
•24 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL KOORI COURT DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00672
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN ELLIS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2017 | |
DATE OF SENTENCE: | 24 July 2017 | |
CASE MAY BE CITED AS: | DPP v Ellis | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1002 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – consolidation – burglary, theft, handle stolen goods, armed robbery, dangerous driving while pursued by police, possession of drug of dependence, unlicensed driving – Koori Court Division – participation in sentencing conversation – application of principles in R v Steelie Morgan [2010] VSCA 15 – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Bhai | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr B. Newton | Tait Lawyers |
HER HONOUR:
1 Brendan Ellis, you have pleaded guilty to 12 charges on the indictment: one charge of burglary; four charges of theft; three charges of handling stolen goods; two charges of armed robbery; one charge of dangerous driving while pursued by police; and one charge of possession of a drug of dependence. And in addition, you pleaded guilty to one summary charge of unlicensed driving.
2 You also admitted your criminal record. You have an extensive and relevant prior criminal history, spanning the period from 9 January 2007 to 7 July 2015. You have relevant recorded convictions for armed robbery in 2007; burglary and theft in 2007; aggravated burglary in 2009; and dishonesty, burglary and theft charges from 2015.
3 With respect to the matters, the subject of the indictment, they are all objectively very serious and that is reflected in the maximum penalties prescribed by Parliament and they are as follows: armed robbery, 25 years’ imprisonment; handle stolen goods, 15 years’ imprisonment; burglary and theft, ten years’ imprisonment; dangerous driving while pursued by police, three years’ imprisonment; possess drug of dependence, five penalty units; and unlicensed driving, 25 penalty units or three months’ imprisonment.
4 Pursuant to s.89(3) of the Sentencing Act 1991, upon conviction for dangerous driving while pursued by police, any licences you hold must be cancelled and will you be disqualified from driving for a minimum period of 12 months.
5 I note that in the past you have spent time in custody, initially in Youth Justice and thereafter, you have had many periods of time in your relatively short life, in gaol. I noted that you were sentenced in 2007, as an 18 year old, to three years, to serve 15 months in respect to armed robbery; and as a 20 year old, you were sentenced to two years and ten months for aggravated burglary and assault; and as a 24 year old, you were gaoled for an aggregate sentence of four months for go equipped to steal and thefts; as a 25 year old, you were dealt with in respect to a breach of a suspended sentence, that meant a gaol sentence was restored. You had a further term of imprisonment imposed for dishonesty offending in 2015. You were gaoled in respect to dishonesty offences, burglary and theft and at that time, you were aged 26. You have had a long criminal record and many years spent in custody.
6 You are still in your early adult years – but there is a risk, unless you do not change, that you will become institutionalised. Because of some matters that were raised in the sentencing conversation, I do think that there is still cause for optimism for you.
7
I note that your matter was dealt with in the Koori Division of this court. Present at the hearing and supporting you were your girlfriend, Alice Richie, your
long-term friend, Barbara Scott and your sister, Jessica and I note that Nicole, your other sister, is present in court today supporting you.
8 Your matter proceeded by way of plea of guilty and the sentencing conversation took place in the presence of two Elders and Respected Persons.
9 In submitting to the Koori Court process, you agreed to engage in the sentencing conversation. The Court of Appeal in this State has recognised that the sentencing conversation is designed to further the reformation of an Aboriginal offender.[1]
[1]See R v Steelie Morgan [2010] VSCA 15.
10
Participation in the sentencing conversation is never easy and that was demonstrated in your case. Both Elders and Respected Persons challenged you about your offending and sought from you information about your motivation for the offending and also an understanding of what you could do to address your offending behaviour. You were open and listened carefully to what they discussed with you and accepted that your behaviour involved in this series of offending was not acceptable. You indicated to them your great desire to stop the cycle of freedom, offending and gaol. You acknowledged that you had let down the Koori community and that you are now desirous of having
a more meaningful relationship with the Koori community and in particular, you want to know more about your connections with your Aboriginal family.
11 I am satisfied that you participated appropriately in the conversation and that you do now have insight into your offending behaviour and the need to cease taking drugs. Therefore I consider your active participation in the sentencing conversation is a factor that mitigates punishment.
12
I do not propose to repeat in detail the circumstances of your offending, suffice to say that Charges 1 and 2, burglary and theft, relate to an occasion on
20 October 2016, when you and another unidentified male entered a unit in Nepean Highway, Frankston and stole jewellery, electrical items and tools, estimated at $4,400 in value; Charge 3, theft, occurred in the late evening of 13 November 2016, when a Kawasaki motorbike was stolen from the owner’s driveway. The police fortunately located the motorbike on 15 November 2016 in a lane in Frankston, so it was able to be returned to the owner. Charges 4, 5, 6 and 7, theft and handle stolen goods, relate to an occasion on 4 November 2016, when a Holden Crewman was stolen from a shed on a property and that vehicle was recovered abandoned on 23 November 2016. When it was recovered, police discovered the three registration plates, each of which were stolen.
13 Charges 8 and 9, armed robbery, are the most serious of the charges and they concern an occasion on 6 December 2016. At about 3 am you climbed over a fence at an address in Seaford. You knocked on the door and asked, “Is Niki there?” Niki, a previous resident of the house, had only recently moved. She was known to you through your drug associations. Notwithstanding that you were told that no one of that name was present, you insisted on being let into the house. You removed a 30 centimetre machete from the front of your pants when you entered the home. When you entered, you asked, “Where are they?” You then went into different rooms of the house, checking for the previous residents. When you saw the two occupants were holding their phones, you snatched those phones from them and placed their phones in your back pocket. You then insisted that the male empty his pockets, which he did. You asked him whether there were any drugs in his bag. He tipped the contents out of his bag and you kept asking him, “where are the drugs?”
14 You then insisted that the female who was present, take the drugs out of her bra. At the time, you had the machete on her partner’s shoulder. She was terrified. She pulled down part of her top to show you she did not have drugs in her bra and then you stopped her from doing that. You walked out of the house and down the street. Her partner followed you and as he did, he asked a neighbour to call police. You then threatened him, “Stop following me or I'll cut your head off.” He then ran back to the house and waited for police to arrive.
15 Late in the evening of 12 December 2016, Kimberly Harris was at the home of an acquaintance in Frankston North. You were also present. During the evening, she passed out and without her permission, you took the keys of her Ford Falcon. That is Charge 10, theft.
16 On 14 December 2016, police in an unmarked car observed you driving in Monterey Boulevard, Frankston North. You were doing burnouts in the Ford Falcon that you had earlier stolen from Ms Harris. You drove along Monterey Boulevard and turned into Rosemary Crescent. Eventually police were able to stop you from driving further. When arrested, it was ascertained that you were unlicensed. That constitutes the charge of dangerous driving whilst pursued by police and also the summary charge of unlicensed driving.
17 At about 6 pm on 14 December, you were arrested as you sat in the stolen Falcon. Located in the car was a small screw top plastic container, containing some cannabis. The Crown accept that it was a small amount and it was for personal use. That is Charge 12, possess cannabis.
18 Following your arrest, you were interviewed and generally denied any knowledge about the offending. You told police, “I've been drug fucked for the last couple of weeks.” In respect to the armed robberies, you said it was, “Just lies like the rest of the stupid story.” You falsely stated that you had been given permission from Ms Harris to drive her vehicle.
19
There were no Victim Impact Statements filed. Having regard to the particular circumstances of the armed robberies, I accept that it would have been
a terrifying episode for both parties who were the subject of your actions. I have had regard to what the female victim stated in her statement where she said she was not able to do anything during the incident and she was pretty much hyperventilating. She said that she suffered from panic attacks and the incident brought one on. She tried to calm down, but was just getting more freaked out. She was terrified something would happen to her partner or herself. She was feeling very anxious and still is about the whole incident.
20
This offending, the subject of the current indictment, spans the period
20 October 2016 until 14 December 2016 and represents a series of serious criminal offending. In particular, the armed robberies are of objective seriousness, having regard to the fact that you entered the home armed with a machete, which you used to threaten the two occupants to relieve them of their phones. Your actions on that occasion were terrifying. There is
a need in sentencing you for the court to denounce your behaviour and to emphasise general and specific deterrence, as well as the protection of the community.
21 Mr Newton, on your behalf, made both written and oral submissions in mitigation of penalty. He openly acknowledged the offending was serious and in particular, he agreed that the charges involving the armed robbery, involving as it did, two citizens in their own home, is serious offending.
22 The context to the offending was directly related to your addiction and use of illicit drugs. Whilst explaining your offending, it in no way provides an excuse for this behaviour. Fortunately, no one suffered any physical injury or harm.
23 I have had regard to your personal history and circumstances. You are of Aboriginal descent. You are 28 and the eldest of three siblings. You have two sisters. Your early childhood and formative years were marred by significant social disadvantage. Your parents separated when you were only aged between five and seven years. Following separation, you lived with your mother, who was a known drug user and also alcoholic.
24 The Department of Health and Human Services were involved from an early age. You were placed in the care of your father and step-mother in Dandenong when you were about ten and remained there until you were about 15 or 16. Until you reached 18, you experienced great difficulty in sustaining consistent accommodation. You lived in various residential support units that were provided through the Department.
25
You attended two primary schools and in Grade 2, you were transferred to
a special school. You repeated at least one year and achieved a Year 8 level of education. At age 15 you were expelled from school and you have no other formal education.
26 From an early age, you exhibited attention deficit/hyperactivity disorder. You were prescribed Ritalin until you were aged15.
27 Sadly you have a long history of drug abuse. You commenced smoking cannabis at age 14 or 15 and then your drug-taking included heroin and ice. In March 2005, when you were very young, you were involved in a nasty incident involving your then girlfriend. You experienced feelings of self-recrimination and blamed yourself for not being able to protect her. You have had symptoms of post-traumatic stress disorder since.
28 You do have some limited work experience. You worked for a time in your father's lawn mowing business. You have worked as a labourer on a chicken farm and also as a roof tiler. However, there are many periods spent in gaol and also your drug dependency has been such that you have been unable to retain any full-time employment.
29 In June of 2007, when you were only 16, your mother died.
30 I have taken into account your disadvantaged background and given it due weight in the sentencing process.[2]
[2]Bugmy v The Queen [2013] HCA 37.
31 Over the years, you have been the subject of some testing. Ruth Vine, a psychiatrist, did a formal neuropsychological test on 5 August 2006 and believes you to be of low-average intelligence. Bernard Healey, clinical psychologist, has done numerous reports over the years. He assessed you as having a full scale IQ of 74 on the first two occasions in 2014 at 62 and more recently at 65, which would place you in the 99th percentile. This assessment places you well within the threshold for intellectual disability. I have also taken into account those findings in mitigation of your sentence.
32 I have already announced that I have had regard to your participation in the Koori Court sentencing process.
33 I have also had regard to your early plea of guilty, which you entered at the earliest opportunity. By entering that plea, you spared the prosecution witnesses, particularly those the subject of the armed robbery, the inconvenience and trauma of being called to give evidence on your trial. The community has been spared the time and expense of a trial. There is real utility in your plea. You have facilitated justice and your sentence is discounted accordingly.
34 Insofar as your rehabilitation prospects are concerned, having regard to your expressed attitude during the sentencing conversation, I consider that there is some optimism, insofar as the future is concerned. You do have the excellent support of your sisters, as well as your girlfriend, Alice, and long-term friend, Barbara, each of whom know about your past criminal history and the current offending. Notwithstanding that, they have committed to providing you with their ongoing support. You are visited regularly whilst in gaol.
35 Currently you are in custody and have been randomly urine tested and the results have been negative for any illicit drugs.
36 I have already referred to your significant past criminal history and I have also noted in the past, the fact that you have been the subject of many custodial dispositions, as well as a suspended sentence, which you breached and which was restored.
37
Ordinarily one would be very guarded about your prospects of rehabilitation, but what appears to be different from the past, is that you do now demonstrate
a realisation that your continuing offending results in an inevitable cycle of you being returned to gaol, with there being no real prospects for you for the future. You now express a desire to be more pro-social in your life and you are making the most of your opportunities in gaol.
38
You have stated an intention to pursue proper counselling for your
post-traumatic stress disorder and drug addiction, so that you can rehabilitate yourself.
39 From what was said by each of the support people during the sentencing conversation, without drugs in your system, you can be a much more respectful person, who is loved and loving. Your partner, Alice, and your friend, Barbara, and your sister, Jess, emphasised that there is a real need for you to have structure in your life and support when you transition from gaol to the community. You sister in particular emphasised the need for you to help yourself. She said she is prepared and willing to stand by you and to care for you for the future.
40 It is evident that you do have some literacy problems. You have difficulty reading and writing. In the sentencing conversation, it became known that you have never held a licence to drive. For the future, it would be beneficial to you if efforts could be made whilst you were in prison to address your literacy problems and for help to be arranged to enable you to undertake the necessary learning, so that you can obtain a licence upon your eventual release. That would facilitate you in your endeavours to obtain employment.
41 I have had regard to the fact that since you have been in custody, you have been the subject of an unprovoked physical attack and that your time spent in custody has been onerous.
42 In sentencing you, I must have regard to the seriousness of the offending, the objective gravity and I also must have regard to the matters put on your behalf in mitigation. I must impose just punishment. I have had regard to the principles of totality.
43 Overall, I consider that you have good prospects for rehabilitation, but it is essential that you be provided with supports when you transition from gaol back into the community. You need to be given assistance to realise your stated plan of remaining drug-free, crime-free, living in positive relationships with the people who care and love you and also to ultimately, obtain employment. All of that will be necessary if you are to stay out of gaol in the future
44 Overall I consider that a gaol term to be immediately served is the only appropriate disposition in all the circumstances.
45 I will ask that you now stand please, Mr Ellis.
46 The formal court orders will be as follows:
47 Charge 1, convicted and sentenced to one year imprisonment.
48 Charge 2, convicted and sentenced to six months’ imprisonment.
49 Charge 3, convicted and sentenced to one year imprisonment.
50 Charge 4, convicted and sentenced to one year imprisonment.
51 Charges 5, 6 and 7, sentenced to three months' imprisonment on each charge.
52 Charge 8, the armed robbery and Charge 9, the armed robbery, you will be sentenced to three years’ imprisonment in respect to each charge.
53 Charge 8 is the base sentence.
54 Charge 10, convicted and sentenced to one year imprisonment.
55 Charge 11, convicted and sentenced to six months’ imprisonment.
56 Charge 12, that is possess the cannabis, possess drug of dependence, you will be convicted and discharged.
57 Summary charge 26, you will be convicted and sentenced to one month imprisonment.
58 I make the following orders for cumulation. Six months on Charge 1; three months on Charges 3 and 4; six months on Charge 9; three months on Charges 10 and 11, are cumulative upon each other and also the sentence imposed on Charge 8.
59 That gives a total effective sentence of five years' imprisonment.
60 I fix a non-parole period of two years' imprisonment.
61 I make the following declaration. Pursuant to s.6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a term of imprisonment of six and a half years, to serve four years.
62 I make the following declaration of pre‑sentence detention. I declare that you have spent 223 days in pre‑sentence detention and direct that that be entered into the records of the court.
63 I make the disposal order sought.
64 Finally, in respect to Charge 11, which is the dangerous driving whilst pursued by police, upon your conviction, all licences that you hold are cancelled and you are disqualified from holding a licence for a period of 12 months, which is the minimum. All right?
65 I will now revise my sentencing remarks and provide those to the Adult Parole Board for them to give consideration to you for your particular needs for the future. All right?
66 Now, Mr Newton, did you want to speak with Brendan here or downstairs?
67 MR NEWTON: Your Honour, I – if you just give me one moment.
68 MR GRANT: Your Honour, I don't know if it assists, but I have updated disposal orders for the court.
69 HER HONOUR: I think I have signed them, haven't I?
70 All right, we can now adjourn.
71 MR NEWTON: Grateful, Your Honour.
72 HER HONOUR: Thank you.
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