Director of Public Prosecutions v Elms
[2015] VCC 402
•31 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-14-00597
CR-14-01515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY ELMS |
---
| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 June 2014, 8 December 2014, 30 March 2015, 31 March 2015 |
| DATE OF SENTENCE: | 31 March 2015 |
| CASE MAY BE CITED AS: | DPP v Elms |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 402 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – theft – armed robbery – make demand with threat to kill – possess drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Convicted and sentenced to a Community Corrections Order of 4 years---
APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr D. Cash | Doogue O’Brien George |
| For the Director of Public Prosecutions | Mr Goodfellows | Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
1In this matter Mr Elms came before the Court on 12 June 2014. On that day he pleaded to the first Indictment No. D13003062 which involved two charges of theft and one of armed robbery. Exhibit A, was tendered being the agreed facts in regard to these crimes. His prior offences, were not of dramatic consequence, but there were matters of possess a controlled weapon and also an earlier theft, those were also tendered.
2In the summary details of Mr Elms' offending, he being now 24 years of age and 23 at the time of the offending, were detailed. To say the least, the thefts were not the most sophisticated, nor did they involve much police investigation, given the circumstances. However, there were concerns in particular about the theft of the knife insofar as Charge 2 was concerned and again the use of the knife in the armed robbery in Charge 3. As I say, these circumstances were hardly professional, detection took place in CCTV, there was no disguise, he was using his own car and Exhibit B were the photos relevant to Charge 3 which were tendered. There was no victim impact statement.
3In support of Mr Elms, Mr Cash tendered a report from the consultant psychiatrist, Cidoni, which indicated a diagnosis of mild intellectual disability; Exhibit 2 being the report of the psychologist, Bjelk, which spoke to the issue of schizophrenia; a CISP report was tendered as Exhibit 3; a Kangan Institute report was tendered as Exhibit 4 and ultimately tendered today was the statement of disability. There was some issue unfortunately in this matter in regard to obtaining the Justice Plan, but that has now been obtained and exhibited today are the statement of disability, Exhibit C, the Justice Plan as set out by the Department of Health and Human Services, Exhibit D, the client overview report Exhibit E and the community corrections services report received yesterday and dated 30 March as Exhibit F.
4Mr David Elms, the prisoner’s father, gave evidence and essentially indicated the problems that had gone wrong with his son, especially when he went to Sydney, the circumstances of his return to Melbourne, the excellent manner in which the family are now looking after him, the obvious need for him to be at home and be assisted by the family, the observations of his excellent socialisation at that time were all positives and led to the Court adjourning the plea as I recall, awaiting essentially his progress to see what we would do.
5The matter was next mentioned on 26 June when the subsequent offences on the second Indictment were mentioned. Bail was respited on 12 June, in fact on that day advice to the Court was that there was an intent to uplift new charges to be heard by me. In fact the new Indictment, which is E11997203, was indeed filed, on 8 December 2014. Mr Bradley Elms pleaded guilty to the charges on that Indictment being one charge of theft, one charge of make a demand with threat to kill and one charge of possession of drug of dependence. Again, in that Indictment, Exhibit A was tendered which was the summary of the facts relevant to that prosecution. That summary was dated 27 November 2014 and detailed the circumstances whereby that offending occurred. It is perhaps consistent with the type of person that we are dealing with, and Mr Elms' problems, that the note was made in such opening that the first appearance, as I have already indicated, was 12 June before me and unfortunately these offences occurred some four or five days later.
6At any rate, insofar as the outline of offending, the first charge of theft was a theft from a Coles supermarket, again in circumstances where he was easily observed. The other charges are a little more concerning in the sense that they are two extortion offences, with threats to kill. Given the circumstances, again they are probably indicative of the person we are dealing with. Significantly, three days after the threats were made Mr Elms was arrested. On that day, the fourth charge came about from the finding of a small amount of cannabis at his home. Again, it was significant that at interview at the Fawkner police station, the officers involved, professionally it seems to me, deemed him unfit to be interviewed.
7Of course, the maximum penalties applicable to these serious crimes are significant. However, again, as I said, we are not dealing with a normal person, we are dealing with a disabled person. As I said, we are dealing with significant penalties, for example, in the first Indictment armed robbery warrants a maximum penalty of 25 years, theft of 10 years and the second Indictment, the extortion with threat to kill attracts a penalty of 15 years and the theft is the same.
8At the second hearing on 8 December Mr Cash appeared and, to use his words, described what his client had done as a “spectacular breach of bail.” There are also issues as to the concern about his knife. There was also tendered at that time the prison notes of his treatment; that was Exhibit E2. The important point about those, that Mr Cash made, were they demonstrate that at the time of admission to prison Mr Elms was in the grip of schizophrenia and/or paranoia, suffering from hallucinations and was heavily medicated thereafter.
9It was clear, and has probably always been clear, I note from my own notes at the time, that there was always a consideration of the potential appropriateness of a Justice Plan. As I say, I am not quite certain what happened at the original hearing because I had ordered a Justice Plan but for some reason it was not provided, albeit the disability statement was. Anyway, finally the formal request was made, pursuant to the Sentencing Act 1991 (Vic), for a Justice Plan and Mr Elms was remanded to yesterday's date. As I say, as of yesterday's date the plan was tendered, and also Exhibit F, which is the appropriate assessment made for the Community Corrections Order.
10It is quite clear in my view that given the totality of the circumstances and the exhibits tendered that despite the time that unfortunately Mr Elms has been in gaol to date, gaol is a totally inappropriate place for him and/or for his appropriate treatment. As I said, in a community such as ours there are far better means by way of treating persons with disabilities and it is my intent to utilise the provisions of the Sentencing Act to pass upon Mr Elms a Community Corrections Order, pursuant to the positive assessment made, and to attach thereto the terms and conditions as set out in the justice plan.
11It is to be noted, and I think it is appropriate that I thank the prosecutor for bringing these matters to the Court's attention, that there were problems, and there will always be problems with Mr Elms if he is tied up with drugs. Unfortunately, it would appear that there were issues with previous persons trying to give him assistance. There was, because of lack of motivation, advice that he was not prepared to give up drugs and further, there were threats made insofar as the victims were concerned as recorded by Gayatuna Ravita. Clearly, those are concerning matters, and in the interests of the community I think it is appropriate the learned prosecutor pronounced that it was clearly to be of the view of the Department of Health and Human Services that Mr Elms will be closely monitored, and that seems to me a very responsible determination.
12It is my intent pursuant to s.41 of the Sentencing Act to make separate Community Corrections Orders in regard to both indictments, and those orders will, pursuant to s.41(1) of the Sentencing Act be concurrent.
13It is also my intention to impose a period of imprisonment insofar as the periods of time served on remand and make a declaration to that effect pursuant to s.18 and to impose the imprisonment pursuant to s.44 in the manner that we have discussed this morning. Insofar as the first Indictment is concerned, that is Indictment D13003062, I will impose a Community Corrections Order in regard to all charges and in regard to the armed robbery charge I will also order that Mr Elms serve a period of imprisonment of 370 days. Insofar as that period of imprisonment imposed, that is a straight sentence of 370 days, in that Indictment I would declare pursuant to s.18 that 370 days have already been served on remand as part of that sentence and that that declaration be lodged in the records of this Court. I also note for clarity that the declaration made in this Indictment is intended to be subsumed within the declaration to be made in Indictment E11997203 so that the maximum period by way of pre-sentence detention is 379 days.
14So that for each of those three charges on that Indictment a Community Corrections Order will be imposed. In addition, on the armed robbery charge there will be an order of 370 days gaol with the s.18 declaration, and the extra statement about the declaration.
15Insofar as a Community Corrections Order is provided for, it is my intention, Mr Cash, to make it four years. Do you see any reason why I should not do that? The reason for that is it seems to me that - I do not know, with his current situation, I could make it a number of years I do not know, but the longer he gets assistance the better, is it not?
16MR CASH: That's right, Your Honour, and Your Honour could certainly make an order for that duration or perhaps an order of less duration with a condition for judicial monitoring if that's ‑ ‑ ‑
17HIS HONOUR: Not judicial - I know it is hardly a judge's duty in this matter to be monitoring.
18MR CASH: That's right, Your Honour.
19HIS HONOUR: These are aspects for specialist care here.
20MR CASH: Yes, quite right, Your Honour.
21HIS HONOUR: And that's why the Justice Plan is imposed. I just want to check, Mr Prosecutor, is there any restrictions on the time involved for the Justice Plan? I seem to have the feeling that there was.
22MR GOODFELLOWS: Section 80, Your Honour, Sentencing Act. It says when attaching a Justice Plan the condition may apply for a period up to two years.
23HIS HONOUR: That's what I thought, yes. So that in passing and adding a condition of the Community Corrections Order that there be a Justice Plan, it's noted that albeit the Community Corrections Order will be for four years the Justice Plan will only, pursuant to the Act, apply for two years.
24MR CASH: Yes, Your Honour.
25HIS HONOUR: It's to be hoped that that's extended in due course because it seems to me that Mr Elms will always need this assistance and if this assistance can be provided by the State that's good protection for all of us.
26MR CASH: Yes, Your Honour.
27HIS HONOUR: I don’t see how the family's going to be asked to assist in this matter but at any rate at the moment all I can do is impose it for two years as the learned prosecutor points out.
28Insofar as the other conditions that were recommended, this is not appropriate for a Community Work Order, the other conditions that will be imposed will be a mental - pursuant to s.48D(3) "Assessment and treatment including testing for drugs, assessment and treatment including testing for alcohol"; s.48E, "Supervision"; s.48D(3), "Mental health assessment and treatment offending behaviour programs" and as I said pursuant to s.80, the Justice Plan.
29There is also a note in - I have to incorporate the Justice Plan - to get COATS, where was that? There it is. In the Corrections Order - I think I've complied with that, haven't I, Mr Prosecutor?
30MR GOODFELLOWS: Yes, Your Honour.
31HIS HONOUR: "As COATS will only accept a referral if it is listed as an assessment and treatment condition." I've done that.
32MR GOODFELLOWS: Yes.
33HIS HONOUR: Yes, very well. So that finalises the first Indictment. The second Indictment, as I have indicated, is No. E11997203 and in addition I think there's a summary matter with this, isn't there, of possess a knife and offending on bail, something along those lines?
34MR GOODFELLOWS: That's right, yes, Your Honour, correct.
35HIS HONOUR: For all those matters I will impose again a Community Corrections Order, separate Community Corrections Order but pursuant to s.41 such will run concurrently, equally for four years period, equally with all the conditions that I imposed. However, in regard to the two counts of make demand with threat to kill I will also impose pursuant to s.44 of the Sentencing Act a period of imprisonment in this instance for each of those offences which will mean that that will be a concurrent sentence, 379 days, and I declare pursuant to s.18 of - - -
36MR GOODFELLOWS: I apologise for interrupting. On the second matter, the Indictment commencing E11, the period of PSD from 17 June to today is 287 days. So Your Honour made a declaration on the first matter being 370 days, which is correct. But for the second ‑ ‑ ‑
37HIS HONOUR: I thought to tie in - how does it tie in?
38MR GOODFELLOWS: The declaration, Your Honour, that he's ‑ ‑ ‑
39HIS HONOUR: How many days should be on the first one?
40MR GOODFELLOWS: Your Honour was correct.
41HIS HONOUR: Am I right?
42MR GOODFELLOWS: That was the entirety of the period of pre-sentence detention.
43HIS HONOUR: But I only said 370, I didn’t say 379.
44MR GOODFELLOWS: No, 370 was correct.
45HIS HONOUR: We're correct, all right.
46MR GOODFELLOWS: It was the 9 days in which his bail ‑ ‑ ‑
47HIS HONOUR: So if I just make this one 287 then that will fit in?
48MR CASH: Yes, Your Honour.
49HIS HONOUR: So, I'm sorry, the sentence on both of those charges will be 287 days and I'll make a declaration pursuant to s.18 that such periods of imprisonment be deemed to have been already served on remand and declaration to that effect be noted on the records of this Court. I should also say that pursuant to discussions in Court this morning the declaration is seen to be coexistent with a declaration made in regard to the other Indictment so that the maximum period provided for under s.18 is a total of 379 days, is that right?
50COUNSEL: Yes, Your Honour.
51HIS HONOUR: Very well. I've got the summary matters, I should identify those. There are two commit an offence which was extortion whilst on bail, two offences of that and also possess a knife which was the knife at the bottle shop. So that those matters will also be included and the sentence will be the Community Corrections Order. I think that clears both indictments, gentlemen, doesn’t it?
52MR CASH: Yes, Your Honour. Is that a mirror image CCO for four years with the same conditions?
53HIS HONOUR: Absolutely. With the condition of the Justice Plan for the maximum that it can be.
54MR CASH: Yes, Your Honour.
55HIS HONOUR: Can I thank both counsel for their assistance in this matter which has had its moments to say the least.
56MR GOODFELLOWS: Your Honour, I apologise, this always causes issues, the summary matters, I don’t think the CCO can be that length of time for those summary ‑ ‑ ‑
57HIS HONOUR: Can't it? Very well, what's the length of time? Maximum cumulative Corrections Order imposed by - Magistrates Court - that's not, the jurisdiction is given here, is it not, or am I limited? The Magistrates Court can give cumulative Community Corrections Orders pursuant to s.38(1A) of the Sentencing Act, of five years and if I'm exercising that summary jurisdiction - - -
58MR GOODFELLOWS: Your Honour, that's correct, yes. So s.38 provides that in respect of one offence as a two year maximum, two offences, four years.
59HIS HONOUR: Yes, very well.
60MR GOODFELLOWS: That's the - yes, Your Honour.
61HIS HONOUR: All right. Mr Elms, you’ve been in Court a number of times, you’ve heard your Dad talk to me and talk about how important it is that you are at home being assisted and you take your medicine and you don’t take drugs, all right? It's very important for you to remember that because we don’t want to see you in Court or in gaol again. But if you go back on drugs and you don’t listen to your old man that's where you're going to be. No one wants you in gaol but if you commit these offences you're going to gaol next time. This is your last chance. You’ve got to make sure no more offending. Your family are all here, want to look after you, all right? It's very important that you take the opportunity that you have been given. You should not leave here not understanding how serious the offences you have committed. But for your disability you would automatically be in gaol for these matters; they are very serious offences. However, because of your disability it is inappropriate for you to go gaol. But next time that will not apply, all right? No one wants to see you in gaol where you should not be. So try and work hard, do what you are told by your supervisors, stay off the drugs and remember to take your medicine and remember to listen to dad and mum and your brother.
62Very well, I think that is all I need, Mr Prosecutor?
63MR GOODFELLOWS: That's right. Your Honour has previously made a forensic sample order.
64HIS HONOUR: Sorry, you asked for - there was an original - request for a - this case is never over.
65MR GOODFELLOWS: I do have draft orders.
66HIS HONOUR: Yes, I'm happy to sign those.
67MR GOODFELLOWS: The reporting police station, given where Mr Elms now resides is different, so if it is appropriate we will redraft those orders to take into account his closest police station and provide those ‑ ‑ ‑
68HIS HONOUR: Why don’t we amend them now so while he's here we can give them to the family I think?
69MR CASH: Yes, Werribee police station is the closest to Point Cook, Your Honour.
70HIS HONOUR: Mr Elms, because of the seriousness of these matters I am going to make a forensic order in regard to your son. That means he has got to report - so he hasn’t given one to date obviously?
71MR GOODFELLOWS: No.
72HIS HONOUR: He has got to go the police station and give a sample of his saliva. The purpose of that is, which we hope it never happens, if he's ever involved in another crime it helps the investigation. We hope he never is, all right, but because of the seriousness of these matters I have made that order. Very well and thank you for your assistance and all the best.
73Mr Prosecutor, in regard to the first Indictment my notes show there was a disposal order and a compensation order. I will not make a compensation order in the circumstances. I will make the disposal order.
74MR GOODFELLOWS: No, Your Honour. Thank you, Your Honour.
75HIS HONOUR: Have I signed those already?
76MR GOODFELLOWS: I think you have, Your Honour.
77HIS HONOUR: Have I? Yes. So what did I do with the compensation order? I do not think I would have signed that, would I? I have. There is not much point is there?
78MR CASH: It will sit on file and ‑ ‑ ‑
79HIS HONOUR: Who knows? I'll leave it on file and whoever wins Tatts.
80MR GOODFELLOWS: I have those orders.
81HIS HONOUR: Very well. Mr Cash, I rely on you to have a good talk to Mr Elms yourself.
82MR CASH: I'll do that, Your Honour.
83HIS HONOUR: Or with his father, I don’t care how you do it, but the Court is looking forward to him not getting into any more trouble.
84MR CASH: Yes, Your Honour.
85HIS HONOUR: Yes, can I thank the prosecution for the professional manner in which they’ve gone around this case.
86MR GOODFELLOWS: If Your Honour pleases.
87HIS HONOUR: Thank you. Do you want to check the order as a draft?
88MR CASH: Yes, Your Honour, the CCO?
89HIS HONOUR: Yes.
90MR CASH: Yes, Your Honour.
91HIS HONOUR: We'll do a draft. Mr Elms, you're going to have to sign this order. You spoke to the people yesterday about a Community Corrections Order and we just have to get you to sign it, all right. Mr Cash will explain it.
92MR CASH: Mr Elms has signed those orders, Your Honour.
93HIS HONOUR: Very well. We think we have handled it, Mr Cash.
94MR CASH: Yes, Your Honour.
95HIS HONOUR: Right, I cannot do any more than that. When he gets out it is a matter for Corrections, is it not?
96MR CASH: Absolutely, Your Honour.
97HIS HONOUR: Very well.
98MR CASH: Thank you for that opportunity that you have given my client and one would hope ‑ ‑ ‑
99HIS HONOUR: Let us hope we only hear about him in good circumstances.
100MR CASH: Yes, Your Honour, thank you.
101HIS HONOUR: Thank you. Thank you, Mr Goodfellows.
0
0
0