Director of Public Prosecutions v Ermel
[2020] VCC 1309
•14 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
JUDGE SITTING AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00747
CR-20-00748
CR-20-00749
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYDEN ERMEL MANNING WALSH MICHAEL O'DOWD |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August 2020 |
| DATE OF SENTENCE: | 14 August 2020 |
| CASE MAY BE CITED AS: | DPP v Ermel & Ors |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1309 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – Sentence
Catchwords: Attempt Armed Robbery – Common Assault – Possession of Drug of Dependence – Youthful offenders.
Legislation Cited: Criminal Procedure Act 2009; s.145, Sentencing Act 1991; s.5(4C).
Cases Cited:Boulton v The Queen [2014] VSCA 342, R v Mills (1998) 4 VR 235, R v Wyley [2009] VSCA 17, Azzopardi v The Queen [2011] VSCA 372.
Sentence:All three co-accused are convicted and sentenced to a two year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Director of Public Prosecution |
| For Accused Ermel | Mr J. Lowy | LD Legal Services Pty Ltd |
| For Accused Walsh | Mr Timms | Cahills Barristers & Lawyers |
| For Accused O'Dowd | Ms Millar | Victoria Legal Aid |
HIS HONOUR:
1On 14 August 2020, Bryden Ermel, Manning Walsh and Michael O'Dowd, you each pleaded guilty to one charge of attempted armed robbery of Rex Newbold. This charge has a maximum penalty of 20 years' imprisonment.
2The three of you also pleaded guilty to three separate charges of common assault of Imigen Johnson, Marcus Coulthard and Harry Fleming. The three charges were Charges 2, 3 and 4 on the indictment and each charge has a maximum penalty of five years' imprisonment.
3Bryden Ermel, you also pleaded guilty to two separate charges of possession of drug of dependence, one being Cannabis L, the other being cocaine. These charges each carry a maximum penalty of 12 months' imprisonment.
4Michael O'Dowd, you pleaded guilty to one charge of possession of a drug of dependence which was cocaine. This charge has a maximum penalty of 12 months' imprisonment.
5Bryden Ermel and Michael O'Dowd, each of you were charged with related summary offences pursuant to s. 145 of the Criminal Procedure Act. You consented to the summary offence being heard at the County Court and have each pleaded guilty to your summary charge.
6In your case, Mr Ermel, you on the day of your arrest had a black handled knife in a sheath in your possession which was a charge of possessing a controlled weapon. This charge has a maximum penalty of 12 months' imprisonment or 120 penalty units.
7Mr O'Dowd, on the day of your arrest you admitted to placing a butterfly knife in the garbage bin as police approached where you were. This was one of the weapons used in the attempted armed robbery offence. The maximum penalty for this offence is two years' imprisonment or 240 penalty units.
8Mr Ermel, you have spent one day in pre-sentence detention, you have no prior convictions. Mr Walsh, you have spent 16 days in pre-sentence detention, you have no convictions. Mr O'Dowd, you have spent 101 days in pre-sentence detention, you have admitted a criminal history.
Overall offending in this case
9The prosecutor tendered a summary of prosecution opening dated 7 July 2020, which set out the full extent of the offending by each of you for the aforementioned charges. It is Exhibit “A” on the plea.
10The three of you, Mr Ermel, Mr Walsh and Mr O'Dowd were friends and lived in or around Bendigo. Manning Walsh, you were a friend of Rex Newbold and the connection between the offenders and the victims of your offending. In part, it is your treachery that led to this criminal behaviour. Rex Newbold lived in Castlemaine; he was 17 years old. The other victims: Marcus Coulthard, Harry Fleming and Imigen Johnson were friends of Mr Newbold.
11Mr Walsh, you were aware that Rex Newbold was returning to Castlemaine from Melbourne by train on 25 January 2020. You believed Mr Newbold was returning with a quantity of drugs in his possession. You told your co-accused; Bryden Ermel and Michael O'Dowd of this information. The three of you decided to rob Mr Newbold of his drugs. The plan was for you, Mr Walsh, to arrange to meet Mr Newbold and that Mr Ermel and Mr O'Dowd would then hide nearby and when opportune; rob Mr Newbold of his drugs.
12On 25 January 2020, you, Mr Walsh contacted Mr Newbold and made an arrangement to meet at the gazebo near the train station in Castlemaine. The three of you then left from Mr Ermel's house in Bendigo in his car. You took with you a machete and a butterfly knife which were owned by Mr O'Dowd. Mr Ermel and Mr O'Dowd also took bandanas to cover their faces.
13You all arrived in Castlemaine shortly before 7.50 pm and parked the car near the sports oval on the western side of the train station. Mr Ermel, you put your machete down your pants; Mr O'Dowd had the pocketknife or butterfly knife in his pocket. Mr Ermel also had a backpack.
14All three of you then walked through the railway underpass to the eastern side of the station. Mr Walsh, you then pointed out the gazebo area to your co-accused. You then sat at the gazebo and waited whilst the other two hid behind a nearby shed.
15While they waited, you, Mr Walsh, sent a series of text messages to Mr Ermel commencing at approximately 8.10 pm. The messages were as follows: 'I am going to see what time the train gets in.' The next message is: 'That's his train.' And the message after that is: 'I'll call you when they come.'
16The Melbourne train arrived at Castlemaine station at approximately 8.15 pm. Mr Newbold alighted together with his friends; Mr Coulthard, Mr Fleming and Ms Johnson. They all walked to the nearby gazebo where you were, Mr Walsh. The group sat down on the seats there and you were talking together. After a few minutes, Mr Walsh made a phone call to one of the other offenders. Mr O’Dowd and Mr Ermel put on their bandanas to conceal their faces and then came out of their hiding place and approached the gazebo quickly with their weapons in hand. Mr Ermel yelled: 'Put the drugs in the bag' and placed his backpack on the table.
17The four victims were terrified, and all immediately scattered, running away in various directions from the gazebo. Those events form the charges of attempted armed robbery of Newbold and the three common assault charges on the three victims, Coulthard, Fleming and Johnson.
18Mr Walsh, you also ran away pretending to be a victim in order to conceal your involvement in the offence.
19Mr Ermel took Mr Walsh's phone from the table. Mr Ermel placed the phone in the Salvation Army bin. This was a prior arrangement with Mr Walsh. Mr Ermel and Mr O'Dowd then went back to Mr Ermel's car and drove home to Bendigo. Mr Walsh returned back to the gazebo and met with the other victims who also slowly returned to the gazebo. Police attended and spoke to Mr Walsh and the victims, all of whom made statements to police that night. Mr Walsh, you signed a statement which portrayed yourself as a victim of the offence and that your phone had been stolen
20Mr Walsh, you were playing a dangerous game that reminded me of the main character in the film titled ‘The Usual Suspects’. There is one major difference to the make-believe character in that film, that is, you got caught. That suspect did not.
21Mr Walsh, whilst you were the link between the offending group and the victim's group, you also were the link that allowed the police investigators to catch the three of you. On the day following the offending, the police rang your “stolen” mobile phone and you answered it. You then said that you had returned to Castlemaine with your friend Bryden Ermel and you used the Find My iPhone app in order to find your phone which was in the Salvation Army bin in Castlemaine.
22Mr Walsh, you then provided a second sworn statement later that day, outlining the above story and continuing the portrayal of yourself as a victim to the offending.
23Closed-circuit television (“CCTV”) of the area of Castlemaine train station was obtained by police and analysed. It showed you, Mr Walsh, in company with two other persons at the railway station underpass near the gazebo area prior to the offending. The police then were able to ascertain the identity of Mr Ermel from the information from you, Mr Walsh, and by viewing the driver's licence photograph, was able to determine that Mr Ermel was one of the persons with you, Mr Walsh.
24On 3 February 2020, at approximately 9.20am police executed a search warrant at Mr Ermel's home in Bendigo. Mr Ermel was arrested and conveyed to Bendigo police station for an interview. A search of his bedroom found a small quantity of cannabis in a Ziploc bag in a shelf in a cupboard, also cocaine in a Ziploc bag was found in a table in a black case and a black‑handled knife was found in the driver's seat of Mr Ermel's car. They form the basis for the other charges against Mr Ermel.
25Mr Ermel was then interviewed and made frank admissions about his role in the offending and the identity of all of his co-offenders. He also admitted possession of the drugs which were said to be for his personal use. At the conclusion of his interview, he signed a statement describing the attempted armed robbery and the persons involved. He stated that he now felt terrible about what he had done.
26On the same day, 3 February 2020, at approximately 12 midday, police executed a search warrant at your place, Mr Walsh, in Longlea. You were arrested by police and conveyed to the police station. The police seized your iPhone on which the messages outlined earlier were found. You were again interviewed, and you maintained your innocence. You said that you arranged to meet Mr Newbold to get some Xanax from him, which you claimed Mr Newbold was going to give you. You said that you had told the others what you were going to do, and they offered to give you a lift to Castlemaine. You said that you knew that they were going to rob Mr Newbold but that it had nothing to do with you. You claimed to be shocked when you saw the weapons.
27As a result of the information supplied by Mr Ermel, Mr O'Dowd was identified as a third offender. A search warrant was executed at the premises in Long Gully at 4 pm on that day. Mr O'Dowd was not home but he answered his phone when it was called by police and he gave them his location which was at the front of a milk bar in Bendigo. Police attended at that location and arrested Mr O'Dowd. When Mr O'Dowd was arrested, he admitted that he had placed a butterfly knife in the garbage bin next to him. The knife was retrieved. This was one of the weapons used in the armed robbery. As yet, the machete has not been located.
28Police searched the premises at Long Gully and in a box in the dining room, found six Ziploc bags containing cocaine. That is the seventh charge for the drug of dependence.
29Mr O'Dowd was interviewed and made admissions to his participation in the offending. He said that he had taken Xanax beforehand and did something stupid. Mr Walsh said he knew a kid who had Xanax and that they were going to take it off him. He said that he supplied the weapons which were for scare tactics. He said that Mr Walsh had told him that the kid with the blonde hair would have the drugs. He said that he now felt bad for the victims and he was really sorry. He admitted possession of the cocaine which he said was for his personal use.
30On 10 June 2020, each of you pleaded guilty to your offending in the Bendigo Magistrates' Court.
Personal Circumstances
31I am going to deal with you separately in respect to your personal circumstances and then when it comes to sentencing considerations, I am going to deal with you collectively.
Bryden Ermel
32First of all, you Mr Bryden Ermel. You were 21 years old at the time of the offending. You are now 22. You attended primary school in Bendigo and then at the Bendigo High School up the hill there from the court. You then left school at Year 11 and commenced a plumbing apprenticeship. You completed two years of that apprenticeship before ceasing due to difficulties with your employer. By 2018, you were doing various work including concreting, farm work and erecting sheds.
33In that year, your mother was diagnosed with a rare cancer. She was placed on a waiting list for treatment at the Peter MacCallum Hospital, here in Melbourne. In early 2019, all four of your grandparents died, as I understand it, and then your own parents separated in mid-2019. Your mother was treated at Peter Mac and by the end of 2019, her cancer condition had gone into remission.
34In 2018, you initially moved to Hoppers Crossing for the purposes of your employment. Later, you moved to Southbank to live with your older brother Rhys. Your brother was abusing drugs and you fell into a methylamphetamine habit also. This was your first foray into the drug culture.
35In the middle of 2019, you moved back to Bendigo to live with your father. Your father works as a disability support worker for DHHS in Bendigo. He gave evidence on your behalf in this court and confirmed all the matters I have just referred to as part of your personal circumstances. Your mother works as a project officer at Bendigo Health.
36You enjoy strong family support from your parents. I note a reference from
Mr Collins and Ms Nancarrow who are your godparents. You have worked on their farm near Bridgewater and they describe you as a hardworking and diligent person.37After your release from remand, you engaged with the Second Chance program in Bendigo. You did your detox at home with your father. He described the manner in which you went about that detox process. Your Second Chance reports are positive. You have remained abstinent from drug use with the assistance also of the Salvation Army in Bendigo.
38You have employment as a concreter with Brad Nicholson in Bendigo.
Your brother Rhys works there with you also as a concreter. You continue to reside with your father and have positive contact with your mother and sister. You have no prior convictions.
Manning Walsh
39Mr Walsh, at the time of the offending, you were 20 years old. You are now 21. As I have already noted, you were the connection between the victims and your co‑accused.
40Since your offending and release from remand, you have returned to live with your mother and stepfather. You have a stepsister and three younger siblings who all live in the family home.
41You are the youngest of the offenders, but you are the smartest. You have the IQ of 118. You completed Year 12 up the hill there in Bendigo Secondary College. You are currently enrolled in an online degree of ancient history at La Trobe University.
42After you left school, you went to Melbourne and worked as a male model.
At the present time, you are unemployed.43Your parents separated when you were very young. Between the ages of eight and 14 years old, you lived with your father in Castlemaine. As I understand it, that is your connection to Castlemaine. Your father was a drug user and you returned to live with your mother at around the age of 14. You are their only child.
44You commenced binge drinking at age 15 and started cannabis use by the age of 16. At 18 years old, you began using Xanax and oxycodone regularly. Xanax was the drug you anticipated robbing from your victim Mr Newbold.
45You have had psychologist consultations in your Year 11 and 12 years to deal with your anxiety condition. I note from the report of Gina Cidoni, forensic psychologist, your mother is also a psychologist. I do not accept Ms Cidoni's opinion that Verdins considerations apply to your sentencing process and indeed your counsel conceded as much.
46You have attended Adam Ferronato, a psychologist, for nine sessions since
2 April 2020. Most of the sessions have been conducted over the phone. Mr Ferronato has diagnosed you as suffering from a generalised anxiety disorder. He notes in the history that in January 2018, you were an inpatient at the psychiatric service after suffering a drug-induced psychosis whilst you were using Xanax.47You report to Mr Ferronato that you were under oxycodone at the time of the offending and that you had been abstinent from all drug taking since your arrest. You report to your therapist that you were traumatised by your arrest and more particularly, your incarceration. Your counsel outlined in more detail some of your experiences in incarceration. I have no doubt it has been a salutary experience for you. In total, you spent 16 days in custody before you were bailed to appear at this hearing today. You have no prior convictions.
Michael O’Dowd
48Finally, Mr O'Dowd, you were 22 years at the time of the offending. You are the only child of your parents, but you have a total of six half-siblings.
You describe your family as a Brady bunch being a combination of two families.49When you were 13 years old, your father had a brain aneurysm. Your father had significant cognitive impairments and mobility restrictions, and as a result of those conditions, your father had to move into a nursing home for him to obtain proper care.
50When you were around 15 years old, your mother separated from your father, however, you have maintained your good relationship with your father and continue to visit him with your girlfriend now.
51You have been in a relationship with your girlfriend for some time. You live with her in a share house in the western suburbs of Melbourne. You have moved to this area after your release from remand with the purpose of separating yourself from what you describe as “negative influences” in Bendigo.
52Whilst you had difficulty with learning, you remained at school and completed Year 12. Your path to Year 12 was different from most. Originally, you went to the Bendigo Tech School at Year 11 level and then you did a two-year plumbing apprenticeship. After that was not completed, you then returned to school to complete Year 12. You have worked in retail and more recently as a barista. You are currently unemployed and in receipt of NewStart allowance.
53Since your early years at approximately 13, you have had a considerable drug habit. You have tried cannabis, ecstasy, amphetamines, inhalants, hallucinogens, cocaine, codeine, oxycontin and Xanax. You have also abused alcohol. At the time of the offending, your main drug of choice was cocaine and prescription drugs.
54After your 101 days in remand, you have detoxed and remain drug free.
You have engaged in the CISP program and have sought assistance from your general practitioner with a mental health plan. I understand from your counsel that the mental health plan has yet to be implemented.55You have been assessed by Catherine Prado, a neuropsychologist, and a suspected acquired brain injury has been excluded as a diagnosis. Your testing found you to be in the borderline category for cognitive capacity.
56Dr Laura Anderson, also a neuropsychologist, has examined you and diagnosed you with adjustment disorder, stimulant use disorder and cannabis use disorder.
57Your criminal history is limited, the previous court dispositions resulting in without conviction fines. You have theft and controlled weapons charges in the past. The current offending is an attempted armed robbery, assaults and drug and weapons charges.
58You have been on bail for three months and have maintained strict bail conditions.
This is an indicator that there is some hope for your rehabilitation despite your long term drug use.
Sentencing considerations
59The same sentencing considerations apply to each of you equally. The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.
60In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your individual culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as offenders are rehabilitated and reintegrated into society.
61I am also required to take into account the current sentencing practices in fixing your sentences. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.
62I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your cases and indeed, as they are from one another.
63I am mindful of the provisions of the Sentencing Act, and in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton and considering if a community corrections order would be appropriate in each of your cases. As you all know, I have had each of you assessed for a community corrections order. Each of you have been assessed as being suitable but that is not the end of the matter.
64In each of the assessments, the assessors individually have said that it is not appropriate for an unpaid community work condition to be imposed. That will not constrain me.
65You have all pleaded guilty to the charges on indictment C2013333. Your pleas of guilty were indicated at early stages. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending.
66Your pleas allows for the perseveration of the court and police resources to deal with other matters and your pleas also vindicate the public confidence in the legal process set up to protect the community. Your pleas are also clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your pleas also recognise you’re all willing to facilitate the course of justice in the community and I accept that your pleas of guilty to these charges indicates and demonstrates some remorse on your behalves.
67The offending by each of you is serious and the level of seriousness is indicated by the following factors:
(a) approximately two days before the attempted armed robbery, the three of you planned the crime;
(b) the planning for the crime involved a cover up story, that was for you, Mr Walsh;
(c) each of you decided upon and acted on your designated role in the offending;
(d) whilst each of you had different roles in the offending, your individual criminality is in effect the same; and
(e) you have offended against younger and easier targets.
68I set out the matters personal to each of you individually and take those matters into account when arriving at your individual sentences. Mr Ermel and Mr Walsh, neither of you have prior criminal history. Mr O'Dowd, you do have previous court appearances which were finalised, as I have stated, by non-conviction disposition. Your prior criminal history is relatively minor in the context of this offending.
69You are all young men. 21 years old in your case, Mr Walsh, and 22 in the cases of Mr Ermel and Mr O'Dowd. You are to be sentenced as youthful offenders. It is a principle of sentencing law that when a young offender such as yourselves is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation. This approach serves the interests of the individual offender, that is each of you, and the community as a whole.
70In the case of R v Mills (1998) 4 VR 235, three propositions of sentencing were set out. One, youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. Two, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending, thus for example, individualised treatment focusing on the rehabilitation is to be preferred. As I have said, rehabilitation benefits the community as well as you, the offenders. Three, a youthful offender is not to be sent to an adult prison if such a disposition can be avoided especially if they are beginning to appreciate the effect of your past criminality.
The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of youthful offender and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.71In more recent times, the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley [2009] VSCA 17, Maxwell P says as follows:
'Mills constantly reminds sentencing courts, and this Court on appeal, that there is a great public benefit in the rehabilitation of an offender and maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as "excluding the principles in Mills", but simply as instances of how those principles are to be applied.
'As counsel properly conceded towards the end of his submissions, there is a role of general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is [not] one of those kinds. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary in the circumstances of the case.'
72In cases of attempted armed robbery and sentencing principles of general deterrence are important. The issue of sentencing young offenders was also considered in Azzopardi v The Queen [2011] VSCA 372, where Redlich JA, as he then was, Coghlan and Macaulay JJA, agreed and said as follows:
'The general proposition which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.'
73You have each spent some time in custody on remand prior to being bailed for this plea hearing. Mr Ermel, you have spent one day in pre-sentence detention. Mr Walsh, you have spent 16 days in pre-sentence detention. Mr O'Dowd, you have spent 101 days in pre-sentence detention. Each of you know from that harsh experience what a custodial sentence means to you. I am satisfied that the principle of specific deterrence for each of you has been addressed by that experience.
74I assess each of your prospects of rehabilitation to be closely tied to your ability to remain drug free and thereafter resume your employment opportunities.
Mr Ermel, you are employed and have advanced your drug rehabilitation.
Mr O'Dowd, you have complied with the CISP requirements and that is a positive indicator for your rehabilitation. Mr Walsh, you have been abstinent from drugs since your arrest and that is also a positive sign for your rehabilitation.75The sentencing principles of parity has application in each of your sentences. Whilst your roles in the offending are different and each part made up the whole of the criminal activity, for the charges of attempted armed robbery and assault charges on 25 January 2020, you are each to serve the same sentence. Mr Ermel and Mr O'Dowd, you are to be sentenced separately for your other offences.
76The sentencing principles of general deterrence, specific deterrence, just punishment and protection of the community are satisfied in these cases by the imposition of a CCO on each of you with conditions of punishment and rehabilitation attached. Your counsel and the prosecution agreed that a disposition of a community corrections order is within the sentencing range for the attempted armed robbery and the three assault charges. In respect of the other matters, Mr Ermel and Mr O'Dowd, I propose to fine you.
77Mr Ermel, would you stand please?
78On the charges of attempted armed robbery, assault of Imigen Johnson, assault of Marcus Coulthard and assault of Harry Fleming, you are convicted and placed on a two year community corrections order. The conditions of that community corrections order are as follows: You are to be supervised; you are to do 200 hours of unpaid community work; you are to undertake drug rehabilitation and assessment; you are to undertake psychiatric and mental health assessment and treatment; and you are to be judicially monitored on 15 December 2020. You can do that from Bendigo. I further order that in respect of your 200 hours of community work, 50 hours of that can be spent in rehabilitation, count in the 200 hours of community work. The reason I make that order is to encourage you to undertake the opportunity of rehabilitation and it will reduce your hours. If you do not do it, then you have still got to do the 200 hours of community work.
79In respect of Charge 5, this is possession of Cannabis L, you are convicted and fined $250.
80In respect of Charge 6, which is possession of cocaine, you are convicted and fined $250.
81In respect of the summary charge of possession of controlled weapon, you are convicted and fined $500.
82If you are prepared to enter into a community corrections order, that will be signed by you and implemented.
83Thank you, Mr Ermel, you can take a seat.
84Mr Walsh, would you stand please?
85On the charges of armed robbery, assault of Ms Johnson, assault of Mr Coulthard and the assault of Mr Fleming, you are also convicted and placed on a two year CCO. The conditions of your order are as follows: you be supervised and that you perform 200 hours of unpaid community work; you undertake drug treatment and rehabilitation; you undertake mental health treatment and rehabilitation and that your judicial monitoring is to take place on 16 December 2020 from Bendigo. 50 hours of time spent in the rehabilitation area can count towards your 200 hours of unpaid community work. I note that you have spent 16 days in pre-sentence detention, and it is just a note because a custodial sentence has not been imposed.
86You can take a seat, Mr Wash.
87Mr O’Dowd, would you stand please?
88In respect of the charges, attempted armed robbery, assaulting Ms Johnson, assaulting Mr Coulthard and assaulting Mr Fleming, you are also convicted and placed on a two year community corrections order with the following conditions: you are to be supervised; you are also to perform 200 hours of unpaid community work, and order that 50 hours of your rehabilitation can count to the 200 hours of unpaid community work; you are to undergo drugs and alcohol rehabilitation treatment; you are also to undergo mental health assessment and treatment and you are to attend for a judicial monitoring on 14 December 2020 but you can do that at Melbourne and I think it will be done by way of videolink connection from Sunshine CCS.
89In respect of Charge 7, possession of cocaine, you are convicted and fined $250.
90In respect of the summary offence of possession of prohibited weapon, you are also convicted and fined $200.
91I note on the record that you have spent 101 days in
pre-sentence detention.92In relation to s.6AAA declaration of each of you, but for your pleas of guilty, I would have sentenced you each, to two years' imprisonment with a minimum non-parole period of one year imprisonment.
93I have also signed disposal orders sought by the prosecution in respect of each of you.
94Is there anything further?
95MS MILLAR: No, Your Honour.
96MR LOWY: Your Honour, can I just confirm that that judicial monitoring date for Mr Ermel was 15 December?
97HIS HONOUR: Yes, the 15th.
98MR LOWY: Thank you.
99MR TIMMS: Thank you, Your Honour.
100HIS HONOUR: What I will now do is the community corrections orders will be printed off shortly and I will ask your clients, each of them there to sign it.
101Mr Prosecutor, does that cover everything?
102MR O'DOHERTY: Yes, it does, thank you.
103HIS HONOUR: It does, yes. Thank you.
104MR TIMMS: Thank you, Your Honour, each of the prisoners have signed their CCOs.
105HIS HONOUR: Thank you. They were returned to the Registrar there, were they?
106MR TIMMS: Yes, Your Honour.
107HIS HONOUR: Thank you. For Mr O'Dowd, I just want to clarify for Mr O'Dowd that on Charge 7 on the indictment, you are convicted and fined $250 and for the summary charge of possession of a prohibited weapon, you are fined $500, so it is a total of $750.
108I have completed the sentencing process, so none of you need to listen to any of the rest of this but I just want to say this to the three of you. When you hatched this scheme to knock off this young bloke over in Castlemaine for his drugs, you might have thought this was playing in a kiddie’s playground. You now know, each of you know, how serious it is and the ramifications that could have been for each of you, let alone the impact you have had on them. With a bit of luck, Mr Newbold has given up his business of getting Xanax tablets from Melbourne but who knows.
109So, you all have had your chance. This is your chance. Each of you better pick it up with both hands and take it, otherwise of course you will come back on a breach before me and in case you are under any misapprehension about what might happen if you come back on a breach before me, let me disabuse you of it. Are we all clear?
110OFFENDER: Yes, Your Honour.
111HIS HONOUR: Yes, good thanks. Thank you. Counsel, thank you very much for your assistance in this matter and in particular, the member of the Bendigo staff who has organised the matters there so that this could all take place in its fragmented manner. Mr Prosecutor, thanks very much for organising all the paperwork and everything else around this case.
112MR O'DOHERTY: Thank you, Your Honour.
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