Director of Public Prosecutions v Flavel
[2016] VCC 988
•13 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
CR-15-02122
CR-15-02125
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRITTANY FLAVEL SAMUEL ARNUP |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 06 July 2016 |
| DATE OF SENTENCE: | 13 July 2016 |
| CASE MAY BE CITED AS: | DPP v Flavel |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 988 |
REASONS FOR SENTENCE
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Subject:
Catchwords: Recklessly Causing Injury; kidnapping
Legislation Cited:
Cases Cited:
Sentence: OFFENDER FLAVEL: 3 Year Community Corrections Order
OFFENDER ARNUP: 2 Year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | |
| For Accused Flavel | Mr A. Swanwick | |
| For Accused Arnup | Mr S. Kennedy |
HIS HONOUR:
1 Brittany Flavel and Samuel Arnup, you have each pleaded guilty to:
· one charge of recklessly causing injury which carries a maximum period of imprisonment of 5 years; and
· one charge of kidnapping which carries a maximum period of imprisonment of 25 years;
2 Ms Flavel you have, in addition, pleaded guilty to one summary offence of committing an indictable offence whilst on bail.
3 The circumstances of your offending are set out in the Summary of the Prosecution Opening, which is Exhibit 1 in this instance.
4 Essentially, both of you attended the premises of your victim with your co-offender, Mr Grimes for the purpose of retrieving Mr Arnup’s car, which you all believed your victim may have stolen for the purpose of gaining security with respect to drug funds owed by Mr Arnup to an associate of your victim.
5 You all travelled to the scene in a vehicle driven by Mr Arnup.
6 Before doing so you Miss Flavel encouraged the proposed visit by sending messages to Mr Arnup in which you suggested this was an opportunity to deal with your victim in the most ultimate of manners, namely killing him. As to that comment I am not satisfied that it involved anything other than juvenile bravado on your part.
7 At the scene, Grimes produced a firearm, shot at your victim and then directed your victim to get into the boot of the car.
8 There is no issue that neither of you were aware that Grimes:
· was in possession of a firearm;
· was going to discharge the firearm at your victim; or
· was going to place your victim into the boot of the car and take him away.
9 While each of you have no responsibility for the behaviour of Grimes in discharging the firearm neither of you said anything to discourage Grimes from placing your victim in the boot of a car which:
· you, Mr Arnup, subsequently drove; and in which
· you, Ms Flavel, subsequently travelled in as a passenger;
to a relatively remote location where the vehicle was stopped.
10 There your victim was removed from the vehicle and assaulted by Grimes.
11 In the course of that assault you, Ms Flavel, verbally abused your victim, an activity which I am satisfied most probably operated to encourage Grimes in his assault.
12 Equally, there is no issue that at that time you, Ms Flavel, convinced Grimes to discard the firearm which he had been carrying and, in that sense, reduced any risks to the victim that he might be injured by reason of the use of the firearm. I am not satisfied one way or the other, however, as to your motivation for doing so. It is not in issue however that at the conclusion of the assault you provided some modest support to the victim.
13 It is not put that you, Mr Arnup, in any way encouraged the assault of your victim other than by your presence and the driving of your car.
14 It is put on behalf of each of you that you were intimidated Grimes, having regard to the fact that he was under the influence of methamphetamine and that this influenced each of you in your decision not to remove yourself from your association with Grimes during the period of the offending by him on this occasion. Whilst I accept that position I am satisfied that you were both most probably aware that Grimes was under the influence of methamphetamine when you embarked upon this escapade and in those circumstances you are both largely responsible for placing yourselves in the position which arose in which you were caught up in the activities undertaken by Mr Grimes about which you had no forewarning.
15 I am satisfied that in sentencing you in this instance, the moral culpability of each of you with respect to this offending falls into a very different and less serious category to that of Grimes, who was the primary offender and who has been sentenced to a total effective period of imprisonment of approximately two-years-and-seven months, together with a community correction order, the duration of which is four years.
16 Ms Flavel, notwithstanding the comments which I have made as to your reduced culpability when compared with that of Grimes, there is no issue that you encouraged Mr Arnup to become involved in the trip out to the residence of your victim which culminated in this offending and that, in doing so, you made aggressive statements as to your dislike for your victim which did nothing other than encourage and incite the animosity between Mr Arnup and your victim.
17 Further, I am satisfied that your behaviour at the scene at which your victim was assaulted most probably had a similar effect upon Mr Grimes.
18 For these reasons I am satisfied that your culpability with respect to the offending to which you have pleaded guilty is significantly greater than that of Mr Arnup.
19 There can be no doubt that for your victim this must have been a frightening situation.
20 On this evening:
· he was shot at;
· he was abducted at gunpoint; and
· he was driven to a remote location in the boot of a car, where he was removed from the car and assaulted.
21 In his sentencing comments, His Honour Judge Chettle appropriately described the situation as one which must have been terrifying for your victim.
22 Although your victim made no comment in his Victim Impact Statement as to how he felt on this evening, I am satisfied that the comments of His Honour Judge Chettle as to the likely thought processes of your victim during the incident itself are appropriate.
23 As to the effects of your offending upon him, your victim is described as sustaining injuries, feeling anxiety as to his safety and being set back in his attempt to rehabilitate himself from his drug use. I give these statements by your victim appropriate weight in sentencing each of you in this instance.
24 Ms Flavel, you are 20 years of age. You have been raised by caring parents and you are clearly supported by your parents who were present in Court at the time of your plea.
25 Having left school at the end of Year 9 you maintained stable employment for a period of two or three years. You undertook a course of study through the Council of Adult Education and obtained a General Education Certificate for Adults. The result of this process being that at the age of 17 your life appeared to be heading in a positive and productive direction.
26 Unfortunately you had commenced experimenting with the use of drugs from the age of about 15. At the age of 17 you commenced to use methamphetamine. As your use of illicit drugs increased the positive direction which your life had taken until that time moved in the opposite direction.
27 You underwent a detoxification program over a period of 18 months, however this was unsuccessful.
28 You were sentenced to a community correction order at the Broadmeadows Magistrates’ Court, however that order did not involve you being referred to appropriate drug treatment or counselling programs and, accordingly, your drug use continued.
29 In mid-April of this year you were arrested and charged with drug trafficking offences. You were held without bail for two weeks. Your plea of guilty with respect to those charges has been adjourned pending the outcome of the present proceeding.
30 While deterrence and denunciation of your conduct as being totally unacceptable are important sentencing principles for this type of offending, given your age I am satisfied that these principles should not assume primacy over the issues of your rehabilitation. As to your rehabilitation, I am satisfied there is some hope given the responsibility you have taken for your offending as demonstrated in my opinion by the mature statements made by you to the assessment officer as set out in your youth justice pre-sentence report of 8 July 2016.
31 Indeed, in sentencing a young offender, the comment is often made that the public can have no greater interest than that the offender become a good citizen and, in that sense, there can rarely be any conflict between the offender’s interest and that of the public when it comes to sentencing.
32 Mr Arnup, you were 22 at the time of this offending and you are now 24. I am satisfied that although you are not a young offender, having regard to your age at the time of your offending and your absence of any relevant criminal record, I should sentence you as a youthful offender.
33 You are a roof tiler by trade, you have stable employment, you are in a stable relationship, you are supported by both your partner and her parents and also by your father, who was present in Court at the time of your plea.
34 You have been fully employed since you left school. You have presented a number of references which describe you as a responsible employee and a caring partner to Teegan.
35 Whilst denunciation of your conduct as being totally unacceptable and the need to make a general statement to the community that conduct of this type will not be tolerated are important sentencing factors, I am equally satisfied that your rehabilitation is in the community’s interest.
36 The offence of kidnapping is an extremely serious offence, carrying with it a maximum period of imprisonment of 25 years.
37 I do not accept the position put to me that it is appropriate to place your joint activity in this instance towards the bottom end of the scale of seriousness with respect to such offending.
38 I am satisfied however that it is appropriate to categorise the activities involved in the offending by each of you in this instance insofar as the charge of kidnapping is concerned, as falling somewhere within the lower to mid-range of the activities associated with that crime given the forceful abduction at gunpoint of your victim about which you had no warning but in respect of which you took no action to reason with, or discourage, your co-accused.
39 You have both pleaded guilty to these offences. The timing and social utility of your pleas warrant a significant discount in the sentence which would otherwise have been imposed. Further, I am satisfied that for each of you your decision to plead guilty is evidence of your remorse and makes a positive statement as to your prospects for rehabilitation and is such that it entitles you to a significant discount in the sentence which I would imposed but for that plea.
40 Mr Arnup I am satisfied that a sentence of imprisonment, which would take you out of the workforce, is not in the interest of the community, nor is it in your interest, when account is taken of your culpability in this offending notwithstanding the seriousness of that offending.
41 Ms Flavel whilst I have given earnest consideration as to whether you should be sentenced by way of a youth justice order, in the end I am satisfied that your rehabilitation and the interests of the community are better served by the imposition of a non-custodial sentence.
42 Would each of you please stand.
43 With respect to each of you I am satisfied that the relevant sentencing issues which apply to each of you as to which I have referred, when considered in the context of the seriousness of this offending, warrant the imposition of a community correction order in the absence of a period of imprisonment.
44 Ms Flavel, I am satisfied that I should impose a community correction order with respect to your offending in this instance for a period of three (3) years. During this period you are to be supervised by the Community Corrections Office and must comply with the following conditions. You are to:
· undertake 250 hours unpaid community work;
· undergo alcohol treatment and rehabilitation as directed;
· drug treatment and rehabilitation as directed;
· be assessed as to your suitability for residential drug withdrawal rehabilitation programs, you are to undertake any such a program if so directed;
· undergo mental health treatment and rehabilitation as directed;
· undertake programs designed to reduce your likelihood of reoffending as directed.
· You will be also the subject to judicial monitoring by me during the period of the order.
45 Do you understand those directions?
46 OFFENDER FLAVEL: Yes.
47 HIS HONOUR: Do you accept them?
48 OFFENDER FLAVEL: Yep.
49 HIS HONOUR: I can say that but for your plea of guilty I would have imposed a period of detention within a Youth Justice Centre for a period of 2 years.
50 Mr Arnup, I am satisfied that I should impose a community correction order with respect to your offending in this instance for a period of two ( 2 ) years. During this period you are to be supervised by Community Corrections and must comply with the following conditions. You are to:
· undertake 150 hours unpaid community work;
· undergo drug treatment and rehabilitation as directed; and
· undertake programs designed to reduce your likelihood of reoffending as directed.
51 But for your plea of guilty in this instance I would have imposed a sentence of 12 months imprisonment.
52 I will make the disposal and forfeiture orders sought in the instance.
53 MR SWANWICK: If Your Honour please.
54 HIS HONOUR: Can I just say that with respect to both of you, you have got yourselves on the knife edge of a nightmare. You are both young. To find yourself in a position in which, as I commented in the course of your pleas, someone might have been killed, that you face a charge with a sentence of imprisonment of 25 years and that you are looking at the loss of your freedom involves a situation in which you have allowed your lives to spiral out of control, particularly you, Ms Flavel.
55 Ms Flavel I was really quite impressed with what you said to the people who assessed you for your suitability for a community corrections order to whom you said that you took responsibility for all this, and it was that which influenced me most strongly in the decision that I have made not to impose a sentence for you, that involved your detention. There is a light on the horizon for you if you choose now to stop letting yourself down and letting your parents down. But you must understand that these Community Corrections Orders are not imposed because they are an easy way out, they are not. What will happen is that you are going to be required to comply with these orders. If you fail to comply with them, you come back to me and because of the seriousness of this offending, your prospects of breaching the order and walking away with your freedom are unlikely.
56 Now I will have a number of sentencing options if either of you breach these orders. What will happen will depend on what you do.. But you should take this very seriously and Ms Flavel, you will be monitored by me. We will meet regularly and I will want to be sure that you are complying with the order and that you are doing your best to sort yourself out.
57 With respect to both of you, I am going to make the orders sought under the provisions of s.464ZF for a forensic sample. It is a mouth scraping. It is not a great intrusion, but if you refuse to allow it to be undertaken, then a police officer will be authorised to use reasonable force to obtain a blood sample. Do you understand that process?
58 I will make the disposal orders sought in this instance. Now you will both have orders which you have to sign, which I will sign first which relate to the Community Corrections Order and I will sign them and make them available to your Counsel, who will take them down and explain them to you again.
59 Mr Arnup, I neglected to ask you whether you were agreeing to accept to the conditions that I have imposed with respect to the Community Corrections Order. Do you understand and accept them?
60 OFFENDER ARNUP: I do.
61 MR KENNEDY: Your Honour, the reporting - where he is supposed to report is at Bendigo. I am just going to ascertain whether Broadmeadows might be more of an advantage to him because he lives in Romsey.
62 HIS HONOUR: Yes. Where do you currently live?
63 OFFENDER ARNUP: I live in Romsey.
64 HIS HONOUR: All right.
65 OFFENDER ARNUP: About an hour and a half away.
66 HIS HONOUR: All right. So is Broadmeadows.
67 OFFENDER ARNUP: Broadmeadows is a lot closer, yeah.
68 HIS HONOUR: All right.
69 MR KENNEDY: Yes.
70 HIS HONOUR: Well Ms Flavel, are you living in Sunbury?
71 OFFENDER FLAVEL: Yeah.
72 HIS HONOUR: All right, well obviously I think it is appropriate - so Ms Flavel, your order requires you to attend the Broadmeadows Community Correctional Centre. That seems to be the most appropriate.
73 OFFENDER FLAVEL: Yeah.
74 HIS HONOUR: Mr Arnup, you probably fall into the same category.
75 OFFENDER ARNUP: Yep.
76 HIS HONOUR: Am I right that the - so what we will do is we will just amend these orders so that they involve your supervision through the Sunbury office and your attendance there. Ms Flavel, you are going to come back to me for judicial monitoring on 23 November. That will be part of the order.
77 MR SWANWICK: That will presumably be in Melbourne rather than in Bendigo.
78 HIS HONOUR: It will be in Melbourne, yes. So both of the orders - Mr Cordy, other attending to the signing of the community corrections orders, I have signed the orders sought with respect to the
79 MR CORDY: Disposal, forfeiture and 464.
80 HIS HONOUR: disposal and the samples.
81 MR CORDY: Thank you, Your Honour.
82 HIS HONOUR: Is there anything else that we need to do?
83 MR CORDY: No.
84 HIS HONOUR: Mr Arnup, can we just confirm your address, your current address?
85 OFFENDER ARNUP: One Acacia Court, Romsey.
86 HIS HONOUR: All right.
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