Director of Public Prosecutions v Fletcher

[2019] VCC 1667

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-19-01601

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON FLETCHER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	9 October 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Fletcher
MEDIUM NEUTRAL CITATION:	[2019] VCC 1667

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr L. Slater	Slater and King

HIS HONOUR: 

1Jonathon Fletcher, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You also pleaded guilty to one uplifted charge of committing offence whilst on bail.  In respect to that matter I will simply sentence you to be imprisoned for one month concurrent and be done with it.

2The situation is that you are now still only 18 years of age.  You have pleaded guilty at an early reasonable opportunity and there is evidence of some remorse, sparse though it may be.  You must of course get the utilitarian benefit of that plea of guilty.  You have a very significant criminal history, albeit all essentially being in the Children's Court.  Since the age of around about 13 or 14 on what I can see here, you have been convicted of numerous offences, or found guilty at least of numerous offences involving violence, there has been affray, there have been armed robberies, attempted armed robbery and all sorts of violent offending.

3The offending that occurs here which I am about to describe has to be regarded as serious.  It calls for the application of general deterrence in the normal sense and is very much specific deterrence in your situation.  There must also be denunciation and an appropriate punishment.  I think and I hesitate and really do not like to say this to one so young, but you have reached a stage at a very early point in time, where community protection becomes a very important factor in the sentencing process.

4In any event, you and a co-accused, who is yet to be dealt with, on 12 May 2019, did an armed robbery on the Liquorland bottle shop in Seymour.  You at the time were 18 years of age and you still are.  You and the co-accused had been apparently seen earlier in the day together.  You went into the bottle shop, one after the other and Ms Leviton was working at the tills which are on the counter and Ms Alisha Rogers was not working at the tills but was working nearby Ms Leviton.  You were observed and you seemed familiar to Ms Leviton. 

5You were dressed in a black jacket, grey coloured shirt, trousers and shoes, et cetera.  You had a gold coloured chain around your neck and identity is not a problem in this situation, so I do not really need to go into the detail of all that. 

6You had a knife concealed in the sleeve of your jacket.  That knife has been described as approximately 30 centimetres long.  Your co-accused was dressed similarly.  After entering you both went to a shelf in the middle of the bottle shop and talked to each other.  You were huddled and the co-accused started to remove bottles from the shelf and hold onto them.  While he was doing that, you turned away from the shelf and produced a knife from the sleeve of your jacket. 

7From your position near the entrance to the bottle shop, Ms Rogers observed you approach Ms Leviton and brandish the knife.  She initially did not see it because she was looking down toward the till.  Having observed you approach, produce the knife and brandish it, Ms Rogers said, 'Are you fucking serious?'  That surprised Ms Leviton who looked up and saw you with the knife.  You were standing there and said, 'You know exactly how this is going to go.  Open the safe.  Just give me all the fucking money'.  Ms Rogers said, 'Mate, there's a three-minute delay on the safe.  I can't get it out'. 

8Your co-accused then approached and told you, 'Just get some cigarettes'.  At that stage the till was open, and the duress system was activated.  You then walked around the counter, approached the till and started to remove a large quantity of cash from it.  Your co-accused approached the till from the front and leant over.  He was holding the bottles.  Words were said to the effect of, 'You can have what's left after I take the 50s', that is from you to the co-accused and you left a $20 note which the co- accused took.

9After you had taken the cash from the till, Ms Rogers opened a second till and again, cash was taken from that.  Something in the order of $800 or so was taken from the tills as well as the three bottles of whisky.  You then left the premises.

10The police attended at the bottle shop, took statements and obtained CCTV footage of the two of you at KFC which was nearby.  In a record of interview a day or so later, you told the police you had used methylamphetamine on the day, had a brain injury which impaired your memory and your memory also becomes impaired when you use amphetamine.  You said that you suffered from a drug induced psychosis and that you have a disability.  It is clear that you do not have a disability within the meaning of the Act.  I will come to that again in a moment.

11Each of the victims has made a victim impact statement and those statements have been read out in court.  Offending of this nature is serious, as I have indicated.  What has occurred here is that those victim impact statements eloquently describe the ongoing psychological damage that offending of this nature causes.  It is not just the fear at the time.  It is the undermining of the person's confidence in themselves, the fact that they have to or endeavour to go to work in circumstances where they do not even want to leave the house. 

12I think it is a situation where I do not need to read them out.  They were read out in open court and those who were listening, know what was said.  They are very eloquent victim impact statements and bring home clearly why even at your age, you have to go to gaol for this.  There is just no other way around it. 

13I have obtained a Youth Justice report which would have been the more preferable way of going about it and I will deal with that report again in a moment.  It says that you are unsuitable for Youth Justice and I am not going to fly in the face of that.

14I then look to matters personal to you which were contained in succinct, if I may say so, submissions together with a psychologist's report which had been prepared by Psylegal.  The situation is that you are 18 years of age and you have been in adult custody since this occurred.  You were - and I think the safest bet here is to simply refer to what was described in the psychologist's report.  It is supported by the other material that is before me.

15You were subject as a child, to numerous DHS reports.  You suffered clearly from physical and emotional abuse.  You were initially cared for by your mother for a number of years and your brother lived there as well.  You and your brother ran away from your father in the end, of physical and emotional abuse and you were sent back to your mother's. She was unable to cope with that and relinquished your care in June 2015.  You were then placed with an aunt and an uncle and then subsequently grandparents.  Those arrangements also failed.

16DHS were clearly involved, and their concerns have surrounded maternal substance abuse, anger management issues and her involvement with violent intimate partners.  There have been issues with partner's, with substance abuse and perpetration of intimate partner violence against your mother were also noted.  You were engaging in absenteeism, absconding, poor hygiene, smoking, failure to take medication, general failure in that situation for the children in the house to be protected, at all.

17You were then put in residential care which is a pretty much a one-way ticket.  You said that you liked residential care, due to the security it provides and the company of other children.  I think only those of us who have been involved in the system for a long time understand just what a devastating statement that is to make.  At the time that psychological report was made, you were engaged in your second Youth Justice Centre order and that was at that stage to end 25 August 2018.  As I have indicated to your counsel, I simply take that into account in that way.

18Your own employment history is virtually zero.  You worked for three months at KFC at one stage, as I understand it.  You had an integration aid in Year 7 to assist with everything.  You were then, as you saw it yourself, a bad kid.  You reported that you had been suspended and expelled for fighting, carrying a knife.  You went back to mainstream school, truanted again, and also were dealt with for threatening the Principal of the school.

19Working at KFC, you said you had difficulty with authority, you hated your boss and hate being told what to do.  You began drinking at around about 13.  Cannabis from around about 16.  Ecstasy since about 16 and ice since about 16.  It is in those circumstances that the armed robbery took place.

20It is clear from the reports that you were diagnosed with ADHD at an early stage.  It would appear also that there is foetal alcohol syndrome involved, which imposes a significant learning difficulty.  You are not in the circumstances where you have the recognised disability, but the principles involved in Bugmy of a background of that nature, clearly have a role to play here.  There is no suggestion that the principles involved in Verdins are enlivened.  I have read the DHS report and I have read the reports, the two reports actually of the psychologist, Scully.

21When you were interviewed by Youth Justice, bearing in mind that you had been in Youth Justice detention before, the conversation that they had with you was probably pretty revealing.  You were assessed on 9 October 2019 and you engaged well.  They said that your physical presentation has significantly improved during your time in custody [and I interpolate here, but they have obviously got a long history of knowledge of you] and that whilst in the community, your poor self-care and significant drug use always result, or effectively resulted in detrimental effect on your physical and mental health. 

22When you were asked about Youth Justice as opposed to adult custody you said, 'I don't care where I go'.  Whilst you have been on remand in adult custody, according to Corrections, you have been involved in three separate inmate assaults.  You have been assessed as not having an intellectual disability.  When you were in doing the course of your Youth Justice sentence back in 2018, you were again at that point in time, involved in 14 incidents, some of self-harm and five of assaulting other inmates. 

23You claim or say - and I have no reason to doubt it - that you have been drug free for the past five months since being remanded into adult custody.  You have endeavoured to engage with available educational systems or programs, and you started VCAL but being shifted from the gaol you were in has brought an end to that.

24In your situation, even at your age, the prospects of your rehabilitation appear bleak.  It is hard to escape the opinion that upon release you will just simply start doing all this again.  The report says:

'There's little evidence to suggest Mr Fletcher currently has reasonable prospects for rehabilitation'.

25It is a comment made by one of the Elders in Koori Court at one stage, and always rung true with me, that this sort of offending takes place on two defenceless women just doing their work in a bottle shop.  If the person behind the counter had been a six-feet five-inch bikie, I doubt very much whether you would have gone ahead with it.  There is an element involved in all this of cowardice.  You have the capacity to turn it around.  If you want to keep hurting people, and you do something like this again, some judge is going to give you a very significant sentence indeed.  You are a danger to the community and the community should not have to put up with you.

26At your age though, I find that the prospects of some sort of rehabilitation are not extinguished and therefore I am going to give you a minimum term which - to be available than might otherwise be the case.  It is going to be up to yourself whether you get parole and I will leave it for the Parole Board in the future to decide what the risk is, of you reoffending.  I am in the difficult situation of what I regard as a very serious offence in very cowardly circumstances, as having to sentence somebody who is still regarded by the Act as effectively a child.  However, in all those circumstances it has to be a custodial sentence and it has to be one which reflects the seriousness of what you did, albeit by someone so young. 

27Accordingly, on the charge of armed robbery, you are sentenced to be imprisoned for a period of three years.  I direct that 18 months be served under that sentence before becoming eligible for parole.  I direct that 157 days be reckoned as having been served under this sentence. 

28Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of four and a half years with a minimum term of three.

29Any other orders that need to be made here?

30MR BROWN:  No, Your Honour.

31HIS HONOUR:  No?  All right.  All right, yes, you can take him now, thank you.

32(At this stage the accused left the court.)

33I do not know whether you are going to go and see him afterwards, Mr Slater, but you can explain to him ‑ ‑ ‑

34MR SLATER:  I will do.

35HIS HONOUR:  ‑ ‑ ‑ what I said.  And I think what you also should be explaining to him pretty clearly - whether he cares or not is another matter - that he does something like this again, some judge is going to give him a serious, a serious sentence.  If it was me, I would be heading for double figures.

36MR SLATER:  Yes.

37HIS HONOUR:  You can tell him that.

38MR SLATER:  I will.

39HIS HONOUR:  All right.

40MR SLATER:  Thank you.

41HIS HONOUR:  Yes.  All right.  Thanks, Mr Brown. 

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