Director of Public Prosecutions v Emerson

[2019] VCC 1459

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-00861

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY EMERSON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Ballarat
DATE OF HEARING:	5 September 2019
DATE OF SENTENCE:	6 September 2019
CASE MAY BE CITED AS:	DPP v Emerson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1459

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr J. Irwin	Irwin & Irwin

HIS HONOUR:

1Bradley Emerson, on 29 October 2018 you robbed the Hungry Jack's store in Sebastopol.  You went into the store around 10.30 pm when the staff were packing and cleaning up for the night.  You were wearing a frightening black mask.  You carried a knife concealed under your jumper.

2You confronted first a young victim, a 16 year old female, demanding money and threatening to stab her.  She could see part of your knife.  She was absolutely terrified.  She alerted her manager who then courageously came towards where you were and ultimately emptied the tills into a takeaway bag.  You then left with between six to $700 in cash.

3While the armed robbery was going on another young 16 year old worker nearby witnessed, along with the manager, what you were doing.  He could see the weapon sticking out from under your jumper.  The manager actually believed you had a gun and was frightened that he and others may be shot.  I have watched the CCTV footage and your appearance and conduct were indeed frightening.  You had spoken of committing this armed robbery with a friend.  The police compared the CCTV footage of the armed robbery to other CCTV footage that they had of you on the Shepparton Police Station.  The search was then conducted of your house on 7 December 2018 and it located the jumper that you were wearing on the night of the robbery at the Hungry Jack's in Sebastopol.

4On 5 February 2019 you went to the Ballarat Police Station and confessed.  I was told that you were aware the police were looking for you.  In your interview you claimed that you were drunk and had been using cannabis and ice.  As conceded by your counsel, your intoxication on the night is no excuse.  Quite the contrary.  Your claim was, or the reason for your armed robbery was that you owed money for drugs.  Again, that is of no mitigatory value.

5This was a serious, planned armed robbery.  You spoke to a friend of knowing the routines of the store.  You persisted even when that friend told you not to do it.  You wore a frightening disguise.  You were threatening and the way that you dealt with the young staff working at the store is most concerning.  People who work late at night and necessarily with cash, must have a sense that armed offenders terrorise them then the courts will play its important role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future and the courts will do this by imposing stern terms of imprisonment.

6By reference to the factors that I have outlined, in my view, this is a serious example of an armed robbery on a soft target.  Your counsel agreed with that description.  There is nothing that diminishes your moral culpability which, on any assessment is high.  Here I refer again to the fact that you said you were going to do it, someone told you not to but you persisted.

7The effect on the victims is a factor that I must take into account.  Listen carefully to their victim impact statements and re-read them.  The manager, and I pause here to note that I never refer to the victims by name in my sentences, not out of disrespect to them, of course I know their names, but rather out of respect to them to further protect their privacy.  The manager said that he remembers from this the black mask and the man screaming at me over and over to hurry up.  He wanted the money and to get out.  The manager says, 'I thought I could die here'.  He could not see the weapon, he said, 'But I thought he would pull his gun out and shoot us soon'.

8He went on, that his feeling of disconnection from his body at the time was over when you left and then he felt like he was going to explode into pieces.  He had to hold himself together though for the sake of his crew and the store.  The young woman was crying hysterically and he felt powerless and useless because he could not make her better.  Of course I pause here to note that what was the hysteria of the young woman was caused solely by you.  The manager should never have been made to feel or feel now that somehow he could have, should have, made it better.  He was doing a very brave thing at the time.

9During the week after, he says, he was determined not to let what you did destroy his career.  He pushed on, interviewing applicants for the job the day after.  He says he still remembers and hates the feeling of powerlessness from this and how he felt hurt and his crew were hurt.  He seems to  me to be a very selfless young man.

10The 16 year old male, being a victim of the robbery, has affected him emotionally and he has far less confidence when he is in his workplace.  He has moved fluctuations.  It has caused him sleepless nights and his school work has suffered as a result.  He had a panic attack at work which caused him great embarrassment.  There have been times he has not been able to work all the hours and he suffered financially as a result.  Part time jobs for young people are important to help them get through their schooling and to enjoy their social lives, but he notes that because of everything he has had to do counselling sessions and he is starting sessions with a psychologist.  This is a 16 or 17 year old young man who should not be confronting these things at this time.  He no longer feels safe or is able to move around socially as he would have but for this crime.

11The young 16 old female says that when this crime happened she felt terrified and fearful for her life.  Her first thoughts were that she was going to die.  She has been unable to sleep directly after the crime and was having nightmares.  She still has nightmares from time to time.  She could not attend to her schooling and was away from home a good deal and felt vulnerable.  She is scared in public because she is petrified from what had happened.  She has had to attend counselling and her counsellor has indicated that she may be suffering, or suffer later from a form of PTSD.  As I have noted, she still occasionally has nightmares about the incident.  She notes, 'The crime affected every part of my life.  It has affected my physical and mental health.  It has had an impact on not only my life but my family as well:  my mum, my dad and my brother'.  As I say, I have taken into account the impact upon the victims in this matter.

12As to your personal circumstances, you are now 30.  You have seven previous court appearances all in the Magistrates' Court since 2009.  Your prior convictions have been for dishonesty, driving and drug offences.  This offence of armed robbery is far and away the most serious crime that you have committed.  That said, your prior history is concerning, especially as you have been given the benefit of rehabilitative court orders but you have breached them, continuing to use drugs.

13You were raised by your mother after she left your father when you were about two.  There were allegations that you were abused and you were assisted by a number of services and a child psychologist as you grew up.  Your grandfather was a strong influence but, sadly, passed away when you were 12.  You remained at school but only until 14.  I do not think school was easy for you.  You moved into working, I think the work was at MacDonald's, a store not unlike that, that you robbed.  You enjoyed your sport and had success in junior football and cricket.

14These matters were very important to you and this became clear when, sadly, you were involved in a car accident in 2006 at the age of 17.  It caused serious leg injuries and blindness in your left eye.  You had a long recovery and during that time or thereafter fell into drug abuse.  You did not manage your compensation payments from the motor vehicle accident well at all.  Your mother had repartnered and he, like your mother, were a stabilising influence but, sadly, he died in 2009.

15You moved with your mother to Gippsland in 2012.  You met a young woman, bought a house and had a son, now aged four. Despite what ought to have been settling responsibilities you were often missing and out seeking drugs.  You did not persevere with any rehabilitation programs but you started.  Your mother was encouraging at all steps to do that.  Your mother still supports you.  Her letter tendered on the plea was insightful and helpful to me.  She says your imprisonment detects a greater determination in you to put drugs behind you.  She can see that you are remorseful for what you put the young victims through.

16You will need support upon your release.  However, engaging in long term drug rehabilitation and vocational training in order to secure steady employment are matters very much up to you.  Plainly, the primary sentencing purposes are denunciation of your dreadful crime.  It was terrifying and you now must meet the consequences in the form of years of imprisonment.

17Also important is deterrence to others who may consider arming themselves and robbing soft targets late at night to get money for drugs.  Those who do will be met with lengthy terms of imprisonment.  This must be the unambiguous message sent via the sentence that I impose here.  Your rehabilitation is not overlooked.  I will allow for potential for parole.  Whether and when you are released on parole is for others.  Your plea of guilty is important and your sentence is less because of your early plea.  Your cooperation and genuine remorse is mitigatory.  Overall your prospects for reform seem reasonable given what your mother says about the changed attitude that she detects.  I have taken into account that prison will be hard for you because of your blindness in the left eye.  I was told that your other injuries have recovered.

18As to your rehabilitation, as I have said, it is a matter for you, but I pause to say it is a matter entirely for you, of course, Mr Emerson, but in the end you should not let your mother down again.  She should not be dragged into court like this ever again.

19For committing the crime of armed robbery I impose the following sentence.  I impose a sentence of imprisonment of five years and nine months with a minimum term of three years and nine months.  Had you pleaded not guilty to these offences I would have imposed a sentence of seven years with a minimum of five years.  You have already served time on remand.  If I am correct, that is 213 days.  Is that right, gentlemen?

20COUNSEL:  Yes, Your Honour.

21HIS HONOUR:  You have already served 213 days on remand.  That figure having been reckoned, I now declare that it is part of the sentence I have just imposed.  I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 213 days of the sentence I have just imposed.

22Are there other orders, Mr O'Doherty?

23MR O'DOHERTY:  There are two orders, Your Honour, a forensic sample order and a disposal order.

24HIS HONOUR:  Right.  Mr Emerson, a disposal order has been sought and I will make that order.

25The next order that application is made by the prosecution relates to a forensic sample.  That is a swab from your mouth to extract your DNA.  I intend to grant that order.  The reasons for that are the seriousness of the offending, your prior convictions and it is in the interests of justice that you provide a forensic sample.  When the authorities come to take the sample from you, should you not cooperate they are authorised to use reasonable force to secure the forensic sample.  Just cooperate with them.  Is there anything further?

26MR O'DOHERTY:  No.

27MR IRWIN:  Nothing.

28HIS HONOUR:  Thank you.  Mr Emerson can be taken downstairs.  Thank you for your assistance, Mr Irwin.

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