Director of Public Prosecutions v Escott
[2023] VCC 91
•7 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN JOHN ESCOTT |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2023 | |
DATE OF SENTENCE: | 7 February 2023 | |
CASE MAY BE CITED AS: | DPP v Escott | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 91 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Attempted armed robbery – Armed with a syringe filled with a raspberry flavoured drink to give the appearance of blood – On summons for dishonest offending at the time of this offence – Offender targeted a service station familiar to him – Victim known to the offender –Unsophisticated but premediated offending – Favourable prospects of rehabilitation – Early guilty plea – Full and frank admissions – Remorse – Currently subject to a Community Correction Order
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v The Queen (2021) 96 MVR 344
Sentence: 66 days’ imprisonment in combination with a two-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. White (Plea) Ms M. Struthers (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr M. Brogden (Plea) Mr K. McLaughlin (Sentence) | Nelson Brown Legal |
HIS HONOUR:
Introduction
1Damian Escott, you have pleaded guilty to an indictment containing one charge of attempted armed robbery, contrary to s 75A and s 321M of the Crimes Act 1958. This offence carries a maximum penalty of 20 years’ imprisonment.
2The prosecution opened the case in accordance with a summary of prosecution opening dated 27 October 2022.[1] Your counsel indicated that the opening was an agreed document for the purpose of sentencing.
[1]Exhibit A.
Circumstances of the offending
3At about 2:25 pm on 16 March 2022, you went to the Celebrations bottle shop in Chelsea. You were wearing a hooded jumper, with the hood pulled over your head and a blue facemask.
4As you entered the shop, you closed the front sliding door and leant down to dead bolt the door shut.
5The victim, Mr Jones, was working in the store at the time. He was standing behind the front counter. Mr Jones said ‘what are you doing mate?’ You responded by saying, ‘I’m here to rob you.’ You pulled out a syringe from your pocket, uncapped it and pointed it towards Mr Jones.
6The syringe contained a red liquid substance having the appearance of blood.
7Mr Jones felt unsafe and threatened. He was aware that you had closed the front door. Mr Jones took a baseball bat from behind the counter and moved towards you screaming ‘get the fuck out, cunt.’ He swung the baseball bat towards you.
8You turned around, opened the door and fled from the shop. As you ran away, you removed your facemask and then your jumper, throwing it behind a construction site barrier.
9Mr Jones watched you running down Station Street. He then returned back to the store and contacted the police.
10Police arrived at the shop around 2:35 pm. They obtained a statement from Mr Jones, as well as obtaining the CCTV footage from the shop and Station Street.
11The following day, the police extracted images of you from the CCTV footage. Mr Jones viewed an image and recognised you as an ex-employee at the same bottle shop before the store changed hands in 2018. Mr Jones had worked with you.
12You were arrested on 21 March 2022. At the time of your arrest, you were wearing the same distinctive boots that were observed on the CCTV footage from the bottle shop. You were interviewed and made frank admissions. You accepted attending the bottle shop because you needed money, cigarettes and a packet of chips. You agreed that you shut the door and told Mr Jones that you had come to rob him. You had armed yourself with a syringe, which you had filled with a raspberry drink to give it the appearance of blood. You agreed that you fled the store because Mr Jones came at you with a bat. You accepted that you knew the victim as you had worked with him previously. You said that you did not wish to hurt anyone but were desperate at the time. You apologised for your offending and understood that the victim would have felt threatened.
13Following your interview, you were charged and remanded in custody. You made an application for bail on 26 May 2022, which was granted. On 14 June 2022, you indicated a plea of guilty and were committed to this Court for sentence.
Criminal history
14You have a limited criminal history involving five appearances before the Magistrates’ Court between 15 July 1997 and 15 June 2020. You have convictions for offences of stalking, contravening family violence orders, failing to answer bail, contravening a conduct condition of bail and intentionally damaging property. You have not served a term of imprisonment. In July 1997, you were sentenced to a wholly suspended sentence combined with a Community Based Order. Your last three appearances in August and September 2019 and June 2020 have resulted in adjourned undertakings without conviction.
15You are currently subject to a 12-month Community Correction Order (CCO) imposed by the Melbourne Magistrates’ Court on 15 December 2022. This sentence was imposed in respect of offending committed by you between January 2021 and 7 March 2022. You were sentenced in respect of two offences of burglary, two offences of theft, an offence of robbery, obtaining property by deception, failing to answer bail and contravening a family violence intervention order. The offence of robbery was committed by you on the 7 March 2022,[2] nine days before the offending for which this Court will sentence you. At the time of the attempted armed robbery, you had been charged on summons in respect of the theft offending.
[2]The victim of the robbery was a service station attendant.
Personal circumstances
16You are now aged 46. You were raised by your parents who remain together. You have one younger brother. Although you witnessed infrequent incidents of family violence involving your parents, you generally enjoyed a happy childhood. Your father worked as a taxi driver and your mother worked at a local post office. Both your parents are now retired. You are currently residing with them.
17You completed Year 12 and have enjoyed a significant employment history. You have worked in the carpet industry and as a truck driver. You have also assisted in the family bottle shop business over several years. In fact, this was the same bottle shop business that you targeted, giving rise to the charge of attempted armed robbery. You have qualifications as an arborist and have completed a traffic control course. You have a heavy rigid truck and high risk goods licence. You are currently employed as a cement truck driver and work six days a week.
18You have been married twice. Your first marriage produced two children who are now aged 15 and 13. You support your two children financially. Your second marriage did not last due to substance abuse issues. Your current partner has a son aged six. Together, you also have a daughter who is now aged four. At present, you and your partner do not reside together. However, you maintain an active role in the lives of your stepson and daughter. You support them financially.
19You used illicit drugs as a teenager to cope with unresolved trauma. You have used cannabis for most of your life. You ceased cannabis use for some five years whilst you were married but relapsed. You have not used it for the last four years. You have also dabbled in ecstasy as a teenager. Some five years ago, you began using amphetamines and continued using it for two years. Thereafter, you commenced using methamphetamine. You were using 0.5 grams weekly until you were remanded in respect of this offending. You have had three previous psychiatric admissions between 2017 and 2022 as a result of experiencing a drug-induced psychosis. You have not used any drugs since being released from custody on bail. You consume alcohol on an occasional basis.
20I am told that this offending occurred at a time when you were homeless. Your mother and partner had taken out an intervention order against you. This excluded you from living at home. You lost your employment and were abusing methamphetamine.
21Ms Cidoni, in her psychological report, sets out your background and the results of her psychological testing. She has diagnosed you with Post-Traumatic Stress Disorder (PTSD), Generalised Anxiety Disorder and Substance Use Disorder. The PTSD is linked to the trauma that you suffered in childhood.[3] The same trauma led to you abusing drugs. Ms Cidoni states that you require psychological and psychiatric interventions, treatment for substance abuse and stability in terms of accommodation. She opines that consideration should be given to residential treatment.
[3]Exhibit 2, [40].
22Upon release from custody on bail, you have fully co-operated with the Court Integrated Services Program (CISP). You have remained on bail with stringent conditions which have included daily reporting and a curfew between 9 pm and 6 am. Your compliance has been exemplary. You are now living at home with your parents and maintain regular contact with your partner and children. You are working long hours as a concrete truck driver on a full-time basis. As part of an agreement with your partner, you provide her with all your earnings. You have been undergoing drug counselling and have been free of all illicit substances since your arrest on 21 March 2022. You are currently subject to a CCO which remains in its infancy. The pre-sentence assessment report from the Department of Justice, dated 17 January 2023, states that you have engaged with your current order with a positive attitude and have met all your current obligations.
23Whilst, to your credit, you are making good progress and have abstained from illicit drug use since your arrest in March 2022, you have a long way to go. I regard your prospects of rehabilitation as favourable providing you continue to seek to treat your mental health and long-standing substance abuse issues.
Matters in Mitigation
24You pleaded guilty at the earliest opportunity in the Magistrates’ Court. Your plea of guilty entitles you to a significant discount. You have saved valuable court time and expense, facilitated the course of justice and have accepted responsibility for your actions. You have not sought to challenge or cross-examine any witness. Your plea of guilty must be accorded an additional and palpable discount at a time when the Court is facing an increased backlog of trials.[4]
[4]Worboyes v The Queen (2021) 96 MVR 344.
25You made full and frank admissions and expressed your remorse in the police interview. I accept that your plea of guilty, coupled with your candidness in the police interview, is demonstrative of genuine remorse. You also expressed your remorse to Ms Cidoni during your psychological assessment.[5]
[5]Exhibit 2, [10]
26You spent 66 days in custody, your first custodial experience. I was told that you found your experience in custody difficult, triggering memories of your childhood trauma. You are determined not to reoffend. As I have already outlined, since being granted bail, you have taken the opportunity to improve yourself and live a healthy and balanced life involving full-time employment, counselling and a good relationship with your children.
Gravity of the offending.
27The maximum penalty for attempted armed robbery, namely 20 years’ imprisonment, reflects the inherent seriousness of the offence. Your offending conduct was plainly serious. Whilst I accept that your offending was relatively short lived and quite unsophisticated, there are a number of features that make the offending serious.
28You targeted a shop that you had familiarity with. Prior to 2018, your father owned the shop where you often worked alongside the victim in this matter. Your knowledge of the store allowed you to close the front sliding door and deadbolt it shut. This action caused the victim to be trapped all alone inside the store and prevented anyone else from entering. Whilst there is no victim impact statement, the victim alludes in his police statement to feeling unsafe and threatened. You had concealed your identity by wearing a surgical facemask and pulling the hood of your jumper over your head. You were armed with a syringe that you had filled with a raspberry flavoured drink. Clearly, your intention was to induce fear in the victim by making him believe that you would attack him, if necessary, with a blood filled syringe. Arming yourself with a syringe filled by you and concealing your identity demonstrates that your offending was premeditated. At the time of this offending, you were on summons for dishonest offending.
29I also regard your moral culpability for the offending as high. The fact that you may have been abusing methamphetamine at the relevant time provides no excuse.
30General deterrence and denunciation are primary sentencing considerations in your case. I must also bear in mind your rehabilitation, particularly in circumstances where you have shown resolve to change the course of your life in a positive manner. Specific deterrence and just punishment also assume importance.
Sentencing
31I was urged by your counsel to impose a sentence that would not involve your return to custody. Mr Brogden submitted that all sentencing objectives could properly be met by imposing a suitably structured CCO along with the time you have served. He submitted it would adequately strike the balance between appropriate punishment and your continued rehabilitation.
32On behalf of the prosecution, Mr White conceded that time served along with a CCO would deal with all sentencing objectives in the circumstances of this case, including general and specific deterrence, denunciation and just punishment.
33On Charge 1 of attempted armed robbery, you will be convicted and sentenced to 66 days’ imprisonment. In addition, you will be convicted and sentenced to a CCO for a period of 2 years commencing today.
34Every CCO has core conditions that you must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
35In addition to the mandatory core conditions, the CCO will also include the following special conditions:
· First, you will have to perform 200 hours of unpaid community work as directed.
· Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Third, you must undergo any mental health assessment and treatment as directed.
· Fourth, you will be subject to supervision as directed for the duration of the Community Correction Order.
36You must report to Dandenong Community Correction Services within two working days from today.
37Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
38Mr Escott, you need to understand that if you were to breach the CCO in any way, either by committing another offence, or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.
39The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offence for which you were placed on the order, namely the charge of attempted armed robbery. You would then face the very real possibility of being sent back to prison.
40So, there are serious consequences attached to any breach. Do you understand that?
41OFFENDER: Yes, I do Your Honour.
42HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
43OFFENDER: Yes, I do.
44HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
45OFFENDER: Yes, I do Your Honour, thank you.
Pre-sentence detention
46Pursuant to s 18 of the Sentencing Act 1991, the period of 66 days of pre-sentence detention, is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
47Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 2 years and 3 months’ imprisonment with a non-parole period of 15 months.
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