Director of Public Prosecutions v Floyd
[2022] VCC 2330
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01262
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAWRENCE FLOYD |
---
JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2022 | |
DATE OF SENTENCE: | 15 December 2022 | |
CASE MAY BE CITED AS: | DPP v Floyd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2330 | |
REASONS FOR SENTENCE
---
Subject:Criminal law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 25 months imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Bye | Office of Public Prosecutions |
| For the Accused | Ms A. Addamo | Leanne Warren & Associates |
HIS HONOUR:
1Lawrence Floyd, you have pleaded guilty to the following offences which carry the following maximum penalties:
| Charge No. | Offence | Maximum Penalty | Additional |
| 1 | Armed Robbery s.75A Crimes Act 1958 | 25 years imprisonment | Category 2 offence |
| 2, 5, 7 | Common Assault – common law | 5 years imprisonment | |
| 3 | Prohibited Person Possess Imitation Firearm - s.5AB Control of Weapons Act 1990 | 10 years imp or 1200 penalty units | |
| 4 | Theft - s.74 Crimes Act 1958 | 10 years imprisonment | |
| 6 | Robbery s.75 Crimes Act 1958 | 15 years imprisonment | |
| Summary Charge 4 | Possess Prohibited weapon – s 5AA Control of Weapons Act 1990 | 2 years imprisonment or 240 penalty units | |
| Summary Charge 6 | Contravene intervention order – s.123(2) Family Violence Protection Act 2008 | 2 years imprisonment or 240 penalty units | |
| Summary Charge 7 | Commit indictable offence whilst on bail – s.30B Bail Act 1977 | 3 months imprisonment or 30 penalty units | |
| Summary Charge 8 | Possess Prohibited weapon – s.5AA Control of Weapons Act 1990 | 2 years imprisonment or 240 penalty units | |
| Summary Charge 13 | Contravene conduct condition of bail – s.30A(1) Bail Act 1977 | 3 months imprisonment or 30 penalty units |
2
As I say, Charge 1 is a category 2 offence. It is not submitted that you fall into any exception which would permit anything but a period of imprisonment with a
non-parole period to be imposed.
3Your offending was committed whilst you were on bail for earlier offending. As such, there is a presumption that sentences for these matters will be served cumulatively, unless I order otherwise and failing disrespect.[1]
[1] Sentencing Act ss.16(1A)(e); 16(3C).
4You have a relevant criminal history which you have admitted. I will return to this later in these sentencing remarks.
Circumstances of Offending
5I turn then to the circumstances of your offending. The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
6The offending occurred over the course of two separate incidents on
8 October 2021.7In the first incident, you drove an unknown co-offender to a car park in Oakleigh South. The car belonged to your (then) ex-partner Jade Matthews. Five young men were playing soccer in the car park. You started swearing at the group and your co-offender got out of the car and held a knife with a 40-centimetre blade and demanded that the victim of the charge one drop his puffer jacket
(Charge 1, armed robbery).8After this, you went to the car and took out what appeared to be a handgun but was in fact a bottle of tequila. You pointed the handgun-shaped bottle at the victim Pinto, who feared the immediate application of force and ran off.
9You and your co-offender stole alcohol, a purse containing cash, credit cards and a gift card and a USB stick from the car (Charge 4 theft).
10The unknown co-offender earlier punched one of the young men on the chin.
11The second incident occurred a short time later. You and the unknown co-offender got back in your car and you were driving along Willesden Road, Oakleigh. You cut off another driver who flashed their lights at you. The unknown co-offender got out of the car and approached the other driver. You also got out of the car and approached the driver. The unknown co-offender demanded the driver hand over his wallet, which he did (Charge 6, robbery).
12You were holding the handgun-shaped tequila bottle. You struck the butt on the window and said 'Do you want to get shot tonight?” The other driver replied that he did not want any trouble and you hit the window again with the butt of the hand gun-shaped bottle before returning to the car (Charge 7 common assault).
13You were previously granted bail at the Latrobe Valley Magistrates' Court on
11 July 2021. You were therefore on bail at the time you committed these offences (Summary Charge 7).14You contravened the family violence intervention order, where Jade Matthews was the protected person (Summary Charge 6).
15It was a condition of your bail that you did not drive a motor vehicle
(Summary Charge 13).16You were charged with possession of an imitation firearm which relates to the means by which you used the hand gun-shaped tequila bottle (Charge 3)..
17When you were arrested, police found a knuckleduster and a dagger knife in your possession (Summary Charges 4 and 8).
18Police also found the black puffer jacket, the handgun-shaped bottle of tequila and bank and identification cards belonging to one of the victims from the first incident.
19You were remanded in custody on 9 October 2021 and you have remained there since.
20The matter resolved on 15 July 2022 at a committal case conference. The matter proceeded to the plea as a straight hand-up brief.
Objective Gravity and Moral Culpability
21I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
22The objective seriousness of the offence of armed robbery is marked by the maximum penalty imposed by Parliament, a term of 25 years' imprisonment. Further, your offending constitutes a category 2 offence because it was committed in company. As such, Parliament presumes that the court will impose a period of imprisonment (excluding a combination sentence with a CCO) unless certain circumstances are found to exist. Your counsel did not submit that you fall within any of those exceptions.
23Although the offence of armed robbery is invariably inherently serious, it may be committed in a wide variety of circumstances. In this instance, I take into account the fact that your offending was largely unplanned and relatively unsophisticated. The armed robbery was initiated by the unknown co-offender. Your pleas of guilty to Charges 1 and 2 were made on the basis of your complicity in his conduct in committing the armed robbery and in assaulting one of the young men. Neither of you wore disguises during the first instance of offending.
24You and the unknown co-offender wore bandanas during the second incident but your faces remained largely exposed. Again, although the robbery was actually committed by the unknown co-offender, you were complicit in his actions.
25The two assaults committed by you involved you brandishing the tequila bottle as if it were a handgun.
26Your offending must be met by principles of deterrence, denunciation, just punishment and a measure of protection of the community. I will of course have regard to the totality of the overall sentence I impose for all of your offending.
Personal Circumstances
27I turn now to your personal circumstances. You are 30 years old, being born on 28 November 1992.
28You were born in Traralgon and you are the eldest of three children. Your parents separated at an early age, and you moved between them until aged 11 when you resided solely with your mother.
29Your parents used drugs in your early years, and your mother has a history of alcohol abuse. You were subjected to physical and emotional violence by your father as a young child.
30You have been in a relationship with Jade Matthews for 11 years, and you have two children together. You are also stepfather to Ms Matthews' daughter.
31
You attended a number of primary schools and you were expelled from Frankston High School in Year 8. You then attended Mount Erin Secondary School until
Year 10 when you were expelled again.
32You then completed Certificate II in Hospitality, Horticulture, Domestic/Commercial Cleaning, and other courses. You have been employed in various industries, but you have been unemployed since mid-2018.
33You were diagnosed with epilepsy and experienced seizures since the age of 16. This has resulted in you losing work, and an inability to apply for a drivers licence. Since your motor vehicle accident in 2018, the frequency of your seizures has increased. You are prescribed medical marijuana to manage your seizures and pain from the accident.
34You were first introduced to cannabis at eight years old and became a daily smoker by age of 13. Since the age of 21, you have used methylamphetamines intermittently. You were abusing alcohol by age 14 or 15. You continue to have difficulties with alcohol, and describe it as binge drinking.
35You have a criminal history of violent offending from the age of 21. At the time of this offending, you were on bail for a prior matter. To this point, all of your offending had been dealt with in the Magistrates' Court and you have never been sentenced to a term of imprisonment. Your counsel submits that your prior matters should be seen in the context of the family violence in which you were raised and for the fact that you have no priors for armed robbery or robbery.
36Whilst in custody, you have completed personal improvement courses with respect to relationship building, anger management, and alcohol and cannabis use.
37I also note that whilst in custody you have not received your epilepsy medication on a daily basis.
Medical Reports
38I received the report of Jeffrey Cummins dated 15 September 2022. Mr Cummins reported that you:.
(a) Present as being of below-average intelligence;.
(b) Are diagnosed with alcohol use disorder of moderate severity and cannabis use disorder of moderate severity;.
(c) Have an antisocial personality disorder, adjustment disorder with mixed disturbance of emotions and conduct;
(d) Although Mr Cummins was unable to formally diagnose you with complex Post-Traumatic Stress Disorder, it is his opinion that you are most probably also suffering from complex PTSD. You exhibit symptoms of complex PTSD, although you do not currently meet all the diagnostic criteria;
(e) Mr Cummins recommends that you receive ongoing and intensive psychological treatment; and
(f) Mr Cummins is of the opinion that it is imperative that you undertake further anger management treatment.
39I have also read the other medical reports tendered on your behalf:
(a) Dr Janaka Seneviratne, Neurologist who confirms your diagnosis of epilepsy in 2011;
(b) Mr Ilan Lohr, in a report dated 22 April 2017. He is psychologist who saw you in relation to your difficulties with substance abuse, depression, anger management, interpersonal relationships and legal issues. He outlined your very difficult childhood and family history and provided you with strategies to address these issues;
(c) I had the report of Professor Stephen Davis, Neurologist. He examined you in 2020 after your car accident, and assessed you as suffering a significant impairment as a result of the accident; with a contribution to that impairment from your epilepsy and drug use;
(d)
The report of Dr Brendan Hayman, Psychiatrist assessed you in
October 2019 after your accident. He assessed you as suffering a
whole-person impairment of 25 per cent with a contribution from your previous medical and drug use issues; and
(e)
Then there was the report of Dr Ash Chehata. He is an
Upper Limb Orthopaedic Surgeon who assessed you in November 2019 after your car accident and determined that you were unable to work due to your shoulder injury.
40It is apparent from these reports and that of Mr Cummins report that you still suffer from the aftermath of the car accident; contributed to by your underlying medical condition of epilepsy and your difficulties with drug and alcohol use.
Sentencing Submissions
41Ms Addamo who appeared on your behalf submitted that the following factors should operate to mitigate your sentence;
(a) You expressed remorse for this offending by way of your early plea of guilty to the charges on the plea indictment;
(b) Pleas of guilty were entered at an early stage, at the committal conference;
(c) Your plea was made during the COVID-19 conditions operating in the prisons and in the general community;
(d) You had a considerable period of good behaviour prior to involvement in these offences (that is between 2017-2019 and 2019-2021), noting that matters dealt with by the courts in these periods were contravention proceedings, rather than further offending, with the exception of the matter dealt with at the Moorabbin Magistrates' Court on 7 May 2019 which was possession of cannabis;
(e) She submitted you maintain the support of your family and have a strong motivation to provide for your children and partner;
(f) Then she submitted, that you have a stable residence available to you with your mother and partner upon your release from custody; and
(g) She finally submitted that this is your first time in custody.
42Overall, Ms Addamo submitted that a longer than normal period of parole should apply in this case to allow for a significant period of rehabilitation.
43Ms Coulson for the Crown submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.
44The Crown concedes the following matters are relevant as mitigatory considerations:
(a) The objective gravity of your offending must be lowered by the fact that there was no apparent planning, your conduct appears to have been impulsive and your disguise in the second incident was only rudimentary;
(b) Your plea of guilty is indicative of remorse however, there is no other evidence of remorse. Further, you appear to have only limited insight into your offending;
(c) Ms Coulson submitted that your plea was made during the COVID times. The principles enunciated in Worboyes should be applied to mitigate your sentence.
(d)
Next, she submitted that your prospects for rehabilitation are limited by
Mr Cummins' finding that you remain at a high risk of violent reoffending and that you have no desire to cease drinking alcohol. I noted when this submission was made that you have at least expressed a desire to cut down your consumption of alcohol;
(e) Then it was submitted that your offending must be met by principles of deterrence, just punishment, denunciation and a measure of protection of the community; and
(f) Ms Coulson reminded me that the presumption of concurrency of sentence is displaced in your case, however the Crown did submit that the summary charges to which you pleaded guilty could be met by a fine.
Analysis
45In my analysis, I have already made observations about the objective gravity of your offending. The offence of armed robbery and the other offences committed by you must be met by a period of imprisonment with a non-parole period.
46I will however take into account the factors submitted by your counsel in mitigation of sentence, that is:
(a) Your early plea of guilty;
(b) This is your first sentence of imprisonment
(c) That the principles in Worboyes apply in relation to the COVID conditions under which you must serve your sentence.
(d) And I must have some regard to your childhood, your upbringing, family circumstances and impairments that you have suffered as a result of your medical condition and a car accident.
47I consider that your prospects for rehabilitation are limited, but I will take into account your early plea of guilty, the fact that there were some recent periods of good behaviour and the fact that you have the support of your family and a stable residence available. I note that you do not intend to give up drinking alcohol, but you have resolved to cut down your alcohol consumption. Also, I take into account the fact that you have reconciled with your partner.
Orders
48Accordingly, Mr Floyd, the orders I make are as follows:
(a)
On the charge of armed robbery, you are convicted and sentenced to
16 months' imprisonment. That is the base sentence.
(b)
On Charge 2, of common assault, you are convicted and sentenced to
four months' imprisonment and I order that one month of that sentence be served cumulative on the base and on other sentences.
(c) Charge 3, the prohibited person charge, you are convicted and sentenced to four months' imprisonment, that sentence will be served concurrent with all other sentences.
(d)
On Charge 4, the charge of theft, you are convicted and sentenced to
three months' imprisonment, and I order that two months of that sentence be served cumulatively on the other sentences.
(e)
Charge 5, common assault, you are convicted and sentenced to
three months' imprisonment, and I order that two months of that sentence be served cumulative on other sentences.
(f)
Charge 6, the charge of robbery, you are convicted and sentenced to
eight months' imprisonment, I order that three months of that sentence be served cumulative on the base and other sentences.
(g) Charge 7, common assault, you are convicted and sentenced to four months' imprisonment, I order that one month of that sentence be served cumulatively on the base and other sentences.
(h) On Summary Charge 4, you are convicted and sentenced to two months' imprisonment, I order that sentence be served concurrent with your other sentences.
(i) Summary Charge 6, three months' imprisonment, I order that be served concurrently.
(j) Charge 7, two months' imprisonment to be served concurrently.
(k) Charge 8, two months' imprisonment to be served concurrently.
(l) And Charge 13, two months' imprisonment to be served concurrently.
49Now, on my maths, my intention is that you serve a total effective sentence of
25 months imprisonment. And so Ms Addamo, Ms Bye, I get that from 16 months plus one month on Charge 2, two months on Charge 4, two months on Charge 5, three months on Charge 6 and one month on Charge 7, 25 months. All agreed?50MS ADDAMO: Yes, Your Honour.
51HIS HONOUR: Thank you. I order that Mr Floyd you serve a non-parole period of 16 months before you are eligible for parole.
52I declare the period of 429 days pre-sentence detention excluding today reckoned as already served.
53My 6AAA declaration is that but for the pleas of guilty I would have sentenced you to a period of 42 months imprisonment, with 30 months to serve.
54Ms Bye there are disposal orders and forfeiture orders, there appears to be some overlap between the orders, I intend to make the disposal orders in relation to the weapons and goods.
55MS BYE: All right. As the court pleases.
56HIS HONOUR: Very good. Anything else?
57MS BYE: Nothing further Your Honour.
58MS ADDAMO: Nothing, Your Honour.
- - -
0