Director of Public Prosecutions v Evans
[2022] VCC 1407
•21 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Un-Restricted Suitable for Publication |
CR-21-02563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWAYNE EVANS |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 21 April 2022 |
| DATE OF SENTENCE: | 21 April 2022 |
| CASE MAY BE CITED AS: | DPP v Evans |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1407 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. Connelly | OPP |
| For the Accused | N. Sood | Emma Turnbull Lawyers |
HIS HONOUR:
1.Mr Evans, you have pleaded guilty to one charge of theft, maximum penalty
10 years' imprisonment, one charge of blackmail, maximum penalty 15 years' imprisonment, and a rolled up summary charge of possessing a controlled weapon without excuse, which is a maximum penalty of 120 units or one year imprisonment.Circumstances of offending
2.The circumstances of the offending were set out in the in the prosecution opening which was read in open court by the prosecutor this morning, which I incorporate by reference. In brief outline, this was an impulsive theft of a mobile phone owned by a Mr Shehafi, when he was a delivery person delivering some products to a property in Southbank Boulevard. He left his phone in the cradle in his Mercedes van, while he delivered to the premises. You were there with your then partner, and you proceeded to steal the phone from the cradle. When he returned to the van, he saw the phone missing, went back into the premises, asked to check the CCTV footage and then he identified a person who was wearing a white cap and sunglasses. He then drove around the area of Kavanagh Street and Southbank Boulevard, saw you, approached you, and asked to get his phone back.
3.When he did that, you proceeded to swear at him, produced a flick knife, and stated, 'I've just got out of gaol, I don't mind going back there.' He then said, 'Look I just want my phone back.' And you then said to him, 'Give me a hundred dollars and then I'll give you your phone back.' At that point you were still holding the knife. He agreed and you then put the knife away, and when you gave him the phone back, the SIM card was missing. He then asked for the SIM card, and the case, and said he did not have any money. At that point you retrieved the case and the SIM card and gave him back that SIM card and the case and that was the end of the transaction. He then signalled to a passer-by, the police were called, and you were arrested soon after.
Assessing the seriousness of the offending
4.Your counsel in a comprehensive written outline and elaborated in his oral submissions, put that this is a lower level offending. Certainly, the value of the property which was recovered, the phone, might have been worth $600 or $1000. There was no premeditation with the theft and the blackmail was at the lower end of the scale of blackmail cases. It was accompanied by a threat, but there was only the one threat or demand made, so it was over a very narrow time compass, and no money was exchanged. So, it is in the lower level of offending for blackmail.
5.The summary offence involves three controlled weapons that were found in your possession: A flick knife, a tomahawk and a Stanley knife. They are controlled weapons, you should not have had them. That again is a lower level offending, but they are still controlled weapons.
6.A narrow compass of offending, property recovered, impulsive offending, and not accompanied by pre-meditation which often applies in the case of blackmail charges. So, almost akin to a demand with menaces, as distinct from blackmail. But it is a serious offence as it carries a 15 year maximum.
7.And it was conceded by your counsel in his comprehensive plea, that the complainant would have been frightened and shocked by you pulling the knife on him, when he demanded his phone back.
Mitigating factors
8.Turning to the matters put in mitigation. You were born in November 1984 and you are now 37. The first matter to address is your prior criminal record, which is nine pages and commences back in 2002. It goes for 20 years exactly. 8 April 2002 in the Magistrates' Court theft of a motor vehicle where you were sentenced to a youth training centre order and then following that in September of 2002 an armed robbery charge where it went to the Court of Appeal and you were re-sentenced. At that stage you would have been only 18, where you were sentenced on appeal to a total effective sentence of seven years, with a non-parole period of six years. And thereafter, you have other offences of theft, numerous charges of theft and damaging property, burglary and sentences of imprisonment in 2007, 2008 and then 2009. In 2011, in this Court, aggravated burglary, reckless conduct, unregistered firearm, false imprisonment, theft, a number of other offences where there was a total effective sentence of eight years, with a non-parole period of five and a half years, with 19 days already served.
9.Up until 2018 or so, you were still under sentence from this court. And then, your next sentence was trafficking drugs, five months in 2014. Also for possessing drugs in 2013, and then the most relevant prior to this offending, which took place on 13 May last year. On 23 February 2021, you were before the Magistrates Court on charges of unlicenced driving, dangerous driving while pursued by police, criminal damage, burglary, theft, shop theft, theft from a motor vehicle, committing indictable offences on bail and contravening a conduct condition. On the driving charges, you were sentenced to three months. But the total effective sentence on all the sentences, I will not go into them, was eight months' imprisonment with an 18 months' community corrections order to commence after you were released from prison. There was 140 days declared as time served.
10.You were obviously released from custody shortly prior to this offending. You have got a terrible record, and it indicates you are a recidivist offender, and you concede that. As indicated in the report of Dr Terry, you are a danger because of the period that you have spent, from your adolescence to the present time, as an adult in prison, you are a danger and you are institutionalised.
Personal circumstances
11.Turning to your personal circumstances, which are set out and I incorporate them by reference in the two psychological reports from Dr Treeby and also from Ms Maynard, a Psychologist. You are 37, you are single, you do not have any children. You have led this dissolute life of homelessness and you have had this traumatic upbringing, which I will not repeat. It is clear that you are of Aboriginal extraction. You were brought up by your mother, and had nothing to do with your father. She had numerous partners, you were abused physically and sexually by a number of her partners, which is set out in those two psychological reports.
12.You were in foster care between the ages of 11 and 14. You have had little school achievement, and have been in and out of institutions. As indicated in the sentence of the Court of Appeal, Ormiston JA on 19 December 2003, he indicates that your offending at that point, which was multiple charges of armed robbery, said: 'The appellant's offending was appalling and his prospects for rehabilitation negligible.' But the Court did reduce the sentence. But at that point in 2003 you had numerous prior convictions - you had 18 prior findings of guilt and 55 previous convictions from three court appearances between 2000 and 2001. So, you have got a terrible record.
13.The main thrust of the plea put by Mr Sood, was that you have suffered this terrible upbringing, which is confirmed by Ms Maynard and
Dr Treeby and that invokes considerations of Bugmy v The Queen [2013] HCA 37 because you were a child and subject to sexual abuse and physical abuse, and you were groomed. At one stage you were even kidnapped by one of your mothers’ partner's and abused. And then of course it led to this cycle of early introduction to cannabis, use of heroin at age 14, and then of course getting into the heavier drugs, such as methylamphetamine. Self-medicating in a sense as to address this unaddressed childhood trauma That of course led Ms Maynard to opine that you have literally multiple diagnoses from the DSM-5 - dissociative identify disorder, PTSD, complex PTSD, social anxiety disorder, obsessive compulsive disorder, kleptomania, cannabis use disorder, stimulant use disorder and an anti-social personality disorder. You in a sense have an enduring personality disorder, right into your adult life, right to this present time, aged 37.14.And that is clear and it is indicated in both the reports, you had this impulse control problem, which one can see in this offending, where you have impulsively stolen the phone and then proceeded, when the demand is made by the owner that it be returned, you pull the knife on him and demand the money and that constituted the offence of blackmail.
15.The critical thing is that these psychological problems that she has identified have really never been treated, they are complex and of course they are associated with, as she has indicated, homelessness. You have been couch surfing, you have indicated in your own statement to the Court in the course of the plea that you have never had proper housing. You have been desperate for housing and you have been on a waiting list for something like 16 years, and living in your car at the time of this offending. And of course, as soon as you are released from custody earlier last year, you relapsed into the use of methylamphetamine.
16.So, in a sense, it is not surprising that you committed this offending and you, in your own statement to the Court, have put an optimistic prospect on your prospects. You have finally got housing and Mr Sood has taken proactive engagement with the assistance of Ms Maynard to get you assessed for the NDIS. It is not clear whether you are eligible, but you may be eligible to get your housing and he tendered a report from the Salvation Army to indicate that they have a place available for you. You have been assessed for suitability in a number of different suburbs or regions, but in the meantime you have an address of a person who is going to support you under the Housing Pathways Program in Thornhill Park when you are released from custody, and then you have an offer of a job as a landscaper with the person who lives at that address. So, you do have a chance of a job, and someone to take you to various professional appointments, and that is what Ms Maynard said you need: you need stable housing, you need psychological support, to try and get you onto a productive path to address this deficit you have got as a result of your childhood disadvantage that is set out in those two reports.
17.So, you need treatment for that, you need treatment to address your drug addiction in the hope that you will be able to lead a productive life, as you hit 37. Your counsel in his plea, put that R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 considerations are engaged. I accept they are because of your prior background and disadvantaged upbringing and your long-term psychological problems identified by Ms Maynard. It does reduce moral culpability and it does cause some reduction in the need for general deterrence, however specific deterrence is on the other hand increased, particularly given your prior convictions, and protection of the community is enhanced. And as the prosecutor Mr Connolly, said in a fair submission, it cuts both ways, it is a double-edged sword.
18.The same applies to Bugmy. Moral culpability considerations are reduced, they are enduring, but they do increase the need for protection of the community. And there are incommensurables in that sense, and trying to resolve them is always a difficult sentencing exercise.
19.So, the sentencing considerations that were put, and the matters on the plea that were put by your counsel, are focused on the fact that you have been in custody for now 343 days. That is in the pandemic. Your counsel has put that you had been under lockdowns and quarantine as you move around the prison system. And so, prison, for anyone who has been to prison for the last 12 months, or indeed for the last two years, it has been more burdensome than in the non-COVID environment. Programs have been suspended, and they are just sort of getting off the ground, depending on which prison you are in, on Zoom et cetera, or remotely, and there is a lack of in-person visits, restrictions in movement, lockdowns, and a risk of further lockdowns, and you are on remand. So there is no sentence planning, you really do not know where you are going as you wait for this day in a sense. I regard any period on remand in the last 12 months as being burdensome, particularly for someone like you who has got a number of mental health issues. I must take it into account, along with the Worboyes v The Queen [2021] VSCA 169 “a perceptible amelioration of sentence” for pleading guilty in the COVID environment, but that prior period in custody on remand, is worth substantially more than it would be in normal times.
20.So, to wrap up, I see the blackmail offending is on the lower, but not the bottom of the range. General deterrence is important because people have got to be encouraged to bring to the police these types of offences. The phone is less serious, but of course you do have a very substantial record of dishonesty offences and violent offences. The offending was of short duration, it was unpremeditated. General deterrence is relevant, specific deterrence is relevant, however general deterrence is reduced due to the Verdins and the Bugmy considerations. Putting all those incommensurables together, there is a community interest in your rehabilitation.
21.You have indicated that you have got some insight into your offending. The comprehensive report from Mr Treeby indicates you are on the lower end of the scale, but not completely of the lower end of the scale of intelligence, below average relative to your peers in the bottom 18 per cent. So, even though you have got no educational qualifications, you do have an ability to have some insight and you have indicated to Ms Maynard, and to Mr Treeby, and you indicated that to the Court. So, I take that into account. Your plea I regard as evidence of some remorse. You admit the action was stupid, so that is also to be taken into account. You have some insight, but of course you are institutionalised and you have spent the most of your adult life in prison.
22.So you are, and you admitted, at high risk of re-offending. So, you need immediate assistance when you get out, and Mr Sood has indicated that there is assistance through the Salvation Army and through the people that are going to be giving you accommodation, so that you can get yourself into a mental health program and get into seeing Ms Maynard, getting therapy, specialised therapy, so that you can address these impulse control problems that have blighted your whole adult life. So, I see you as a fork in the road. An aggravating feature of the offending of course is that you have breached the community corrections order that had been imposed about two months before this offending. There has been breach proceedings issued for that, so you have still got to face the music for that offending in the Magistrates' Court.
Sentence
23.Could you please stand? The sentence of the court, having taken into account all the submissions made by your counsel: On the charge of blackmail, you are sentenced to 270 days of imprisonment. On the charge of theft, you are sentenced to 120 days' imprisonment. And on the charge of possession of a controlled weapon, you are sentenced to two months' imprisonment. I order that 73 days of the sentence on the theft to be served cumulatively on the blackmail sentence, making a total effective sentence of 343 days' imprisonment. The two month sentence on the controlled weapon is concurrent.
24.I declare you have served 343 days pre-sentence detention. I declare that had you not pleaded guilty I would have imposed a total effective sentence of
18 months' imprisonment, with a non-parole period of 12 months' imprisonment.25.I have made the forfeiture order that has been sought by the prosecution, for the weapons. Are there any other matters I haven't addressed Mr Connelly?
MR CONNELLY: No, thank you Your Honour.
HIS HONOUR: Mr Sood.
MR SOOD: No, Your Honour.
HIS HONOUR: I want to thank both counsel for their assistance, and in particular Mr Sood for his comprehensive set of submissions, and indicate to Mr Connelly for his submissions as well. And indicate to you, you’ve had this lecture from numerous judges and magistrates, that you’ve got such a prior history, that if you re-offend you'll be given longer and longer periods of imprisonment.
OFFENDER: Enough's enough, that's right.
HIS HONOUR: But in this case, I've taken into account the issues of totality and proportionality in setting the total effective sentence and I have taken into account the additional burden of remand in the COVID environment, and see this matter as far as you are concerned, Mr Evans, as you being somewhat of a fork in the road, particularly now that the NDIS seems to be engaged. If you can get NDIS support, and even if you can't, the needs that you need have really been identified by Dr Treeby and Ms Maynard.
OFFENDER: No, I really need their help.
HIS HONOUR: And the Salvation Army have obviously taken you under their wing and found a spot for you. So, if you get the housing and get the psychological support, there is a real prospect. I regard your prospects of rehabilitation as extremely guarded, but, with the support and the insight you've obviously got, and the period you've had in custody, they're guarded but it's worth the chance for the community interest to have you rehabilitated. So, I've weighed all those matters in coming to this conclusion. So, I'll have the order prepared and given to the authorities as soon as possible.
MR SOOD: As Your Honour pleases.
HIS HONOUR: I thank counsel and adjourn the Court sine die.
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