Director of Public Prosecutions v Forshaw, Ryan Daniel
[2012] VCC 1724
•30 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-12-01054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN DANIEL FORSHAW |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 30 October 2012 | |
DATE OF SENTENCE: | 30 October 2012 | |
CASE MAY BE CITED AS: | DPP v Forshaw, Ryan Daniel | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1724 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Criminal law – sentencing – armed robbery in company - theft
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Sampson | Craig Hyland solicitor for public prosecutions |
| For the Accused | Mr P. D'Arcy | Victoria Legal Aid |
HER HONOUR:
1 Ryan Forshaw, you have pleaded guilty before me to four charges of armed robbery and one charge of theft.
2 Those offences are very serious as is evidenced by the maximum penalties that are prescribed by Parliament, namely, 25 years imprisonment for armed robbery and ten years for theft.
3 In addition you admitted your criminal record and that record spans a period from 5 September 2001 to 18 January 2012. There are 11 court appearances and in the past you have been convicted and undergone a variety of sentencing dispositions for offending including theft of a motor vehicle, unlicensed driving, drive whilst suspended, drive whilst disqualified, deal with property suspected to be proceeds of crime, possess drug of dependence, traffic drugs of dependence and failure to comply with Community-based orders.
4 In the past the courts have extended considerable leniency to you and have imposed a variety of non-custodial dispositions. Sadly, until now you have not made the most of the opportunities that had been afforded to you by the courts. You are currently in custody having been remanded when you surrendered yourself to the police and that was on 20 March 2012 this year.
5 I shall proceed to sentence you on the basis of the prosecution opening that was read into the court transcript and is marked Exhibit 1.
6 The armed robberies occurred over a period of two days, namely, 14 March 2012 and 16 March 2012.
7 The first armed robbery, Charge 1, relates to an occasion on 14 March 2012 at approximately 10.50 pm when you attended the Apco Service Station, Barwon Heads. At that time you were in company with another offender, Bradley Taylor.
8 You got out of a vehicle being driven by Mr Taylor, walked around the station and then after a short time walked to the sliding double doors that were locked, knocked on the door, gained entrance and then pulled down a rolled up balaclava and asked the attendant, Jack Thiessen, a 21 year old male who was working solo, to provide the till.
9 At that time you produced a silver coloured folding knife from your pocket and moved to the front counter. He lifted the till insert, gave it to you, and that included the cash drawer, and you took off with that and fled from the service station. The takings were said to be approximately $2,248.
10 When interviewed you told police that you gave the co-accused $500 and kept the rest. You used the majority of the money to pay off a drug debt and also to purchase some ICE and alcohol. You agreed that the attendant would have been scared by your actions.
11 The second armed robbery, being Charge 2, involves an occasion on 16 March 2012 at about 1.50 pm when you and your co-accused, Mr Taylor, drove to a Shell service station in Geelong at the corner of Gordon Avenue and Latrobe Terrace, Geelong.
12 On that occasion you walked to the front door and Mr Taylor hid near the entrance while you knocked to enter. The attendant on that occasion was Mr Joanne Oaff, a 53 year old female, who was working at the service station alone.
13 She opened the doors allowing you access at which time you pulled down a balaclava and produced the silver coloured folding knife. Mr Taylor followed you inside. He was armed with a wheel brace.
14 You both charged to the counter. You demanded that she hand over the money. She removed all the cash and coins from the till totalling approximately $140.
15 Mr Taylor then made demands for the safe to be opened but she told him she could not open it and you both fled the service station and divided the money that was stolen. You also used ICE on that occasion following the armed robbery.
16 You made admissions to the police in relation to the offending, the subject of Charges 1 and 2, at the time you were interviewed on the first occasion on 20 March this year.
17 Charge 3, the armed robbery occurred on 16 March 2012 at about 3.25 am and on that occasion you and your co-accused, Mr Taylor, went to a service station in the Waurn Ponds area and on that occasion the service station was being attended by Catherine Haar, a 31 year old female, who was working alone.
18 You pressed the buzzer to enter and on entering you pulled the balaclava over your face and produced a knife from your pocket. Mr Taylor followed you into the service station and he was wearing a balaclava over his face and again armed with a tyre lever.
19 You demanded that Ms Haar hand over all the money. She removed the till insert, placed it on the counter and you took that insert and put it into a plastic bag. You then left that service station. $661 was stolen and that was divided between you and Mr Taylor.
20 At the time you were interviewed you made admissions to this offending and stated that you used the money to pay debts.
21 Charge 4 relates to an occasion on the evening of 16 March 2012. Following a discussion between yourself and Mr Taylor you agreed to commit an armed robbery at the Lara Sporting Club.
22 You used a firearm that belonged to another man, Thomas Sharp, who had recently purchased that firearm. It was a Seiko .177 centre fire rifle with a scope and bipod attached.
23 The co-accused, Taylor, took the firearm and put it in the car. This was without the knowledge of Sharp and Sharp has not been charged in relation to this offending.
24 You then parked a car outside the club and you attended in the club jumping over a glass partition and entering a gaming venue. You were wearing balaclavas, gloves and large jackets. Taylor was armed with the rifle and had it concealed under a white sheet. You were armed with a knife.
25 On duty at the time was a 45 year old security guard, Stephen Rickett, and bar staff, Tania Harvey and D'Arne Gray. There were also other patrons present.
26 Mr Taylor confronted the security guard pointing the firearm directly at him and demanding that he lay on the floor. A still taken from the CCTV footage shows that and that was exhibited at the plea hearing.
27 You then went into the cashier's area and demanded that the tills be opened and the safe be opened. Approximately $15,935 was stolen as a result of that armed robbery.
28 You left through the smoking area of the club, went to your car and returned to your house in Lara where the money was divided.
29 You burnt the clothing that you were wearing in a bonfire and the firearm was returned to the porch area.
30 The final charge on the indictment relates to a theft charge and it relates to the occasion on 16 March 2012 at 4.17 pm when you drove a red Mazda coupe to the Caltex Safeway Service Station at Bell Post Hill and stole $30 worth of petrol. The incident was captured on CCTV. You took the petrol and made no attempt to pay for it. You made full admissions about that.
31 On 20 March you surrendered yourself to the Geelong Police Station and a comprehensive record of interview was undertaken during which time you made full admissions to being involved in the three armed robberies at the Shell, Apco and BP Service Stations and indicated to police where the location was of the tills that had been discarded. You identified the clothing that you were wearing and the knife that you used.
32 You did not make full admissions in relation to the final offending until a further interview on 22 March 2012.
33 In that interview you confirmed that you were involved in the theft of petrol at the Anakie Road, Bell Post Hill Service Station and you made admissions to the armed robbery at the Lara Sports Club.
34 You told police that armed robbery was planned by your co-offender, Mr Taylor, and you were concerned about how the victims felt and you acknowledged you could see fear on the attendants' faces.
35 The co-accused, Mr Taylor, has been charged with these offences and has been interviewed by the police but made a "no comment" record of interview and his matter is currently proceeding in the contested mention list.'
36 There are a number of aggravating features of this offending, and in particular I note on each occasion, you committed the armed robberies in company.
37 It would have been terrifying for all the people concerned who were the victims of your crimes and in particular those who were working alone late at night, or in the early hours of the morning, in the service station where they were responsible for the conduct of the operation of the service station and the management of the cash.
38 In respect to Charge 4, I consider that to be the most serious of the offending. On this occasion, and it would have been terrifying for all those that were present including the security guard, the employees and the patrons who were present at the club when these offences occurred.
39 I have been provided with two Victim Impact Statements, the first one from Joanne Oaff, who was the victim in relation to Charge 2. Her Victim Impact Statement speaks dramatically of the difficulties that she has had since this offending. She has been diagnosed with Post Traumatic Stress Disorder and depression. She has been unable to work. She is taking anti-depressants and sleeping tablets. She is also having to undergo psychological counselling.
40 She has expressed her hurt, fear and anger at your actions, Mr Forshaw, and this armed robbery has had an impact on her. She can no longer work at nights. She is afraid of the dark and she is very hyper-vigilant about people that she is not familiar with and feels that she has lost her sense of control over her life. Her husband, children, grandchildren, family and friends are at a loss to understand how she feels. It has impacted on all of her relationships. She is no longer the person that she was prior to the armed robbery.
41 In relation to Charge 4, Stephen Rickett has provided a Victim Impact Statement and he is the security officer who was on duty on the night of the robbery of the Lara Sports Club.
42 His Victim Impact Statement also speaks of the real difficulties that he has experienced trying to deal with his emotions in relation to what happened and he has had time off work. He feels he can no longer return to work in the security industry and that has impacted upon him greatly. He is very emotional. He found himself withdrawn for a day or two after the armed robbery and he considers that this event has changed his life forever and he will have to live with its effects forever more. That has impacted also on him, his family and his personal relationships.
43 Mr Forshaw, armed robbery is very serious, as I have indicated to you. Your counsel said at the commencement of the plea hearing that he acknowledged that clearly these are very serious examples of this sort of offending and any number of them warrants a term of imprisonment. I agree with that submission.
44 All four robberies in this instance are serious and in particular the one that you conducted at the Lara Sports Club is very serious having regard to the degree of planning that would have been involved in order to access the sports club and execute the armed robbery in the manner that was undertaken. That would have involved some planning on the part of one of you. I also note that it would have been terrifying for those present having regard to the use of both the firearm and the knife and the disguises such that this is the most serious of the series of armed robberies and I propose to impose a sentence in respect to that charge that will be the head sentence in your sentence.
45 In sentencing you the seriousness of the offending is of real importance. I consider that each of the armed robberies call for stern punishment and condemnation.
46 General deterrence is a consideration of considerable importance here. So, too, in the light of your past criminal history, is specific deterrence even allowing that you are now making some steps on the path towards rehabilitation. I will refer to that shortly.
47 The Court of Appeal recently endorsed with approval the sentencing remarks of Judge Mullaly in a matter of Blackler v The Queen which is an unreported decision of [2012] VSCA at paragraph 16. That case too involved attempted armed robberies and one armed robbery involving a hotel, a service station and a convenience store where the offender was disguised wearing a balaclava and armed with a knife.
48 On that occasion Judge Mullaly said:
People who work late at night, necessarily with cash, must have a sense that if armed offenders terrorise them then the court will play its role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future and the courts will do this by imposing stern terms of imprisonment.
49 However, I must have regard to your own personal circumstances and the circumstances of the offending and the plea that has been entered in relation to this matter.
50 I note that you were 27 at the time and you are now aged 28.
51 You have been in a lot of trouble over the years involving serious offending and I accept that that is reflective of your long term drug history and drug use. I note that there was use of ICE in the context and setting of these offences and I accept, whilst that provides an explanation for your conduct on the occasions, the subject of the charges, it in no way excuses your behaviour.
52 You have never been in gaol previously. However your counsel did inform the court that in January you served a one month term in respect of some unpaid fines.
53 I accept that you come from a family background of some difficulty and instability and that that has played a role in your drug usage over the years.
54 I note that you left school early, as is often the case in these sorts of cases, when you were aged about 15. I am told that you attended three primary schools and two high schools.
55 In the past you have mostly had some employment involving welding and metal fabrication and general labouring work but had been out of work prior to this offending. You have been homeless and generally your life had spiralled out of control and you were abusing ICE and had a chaotic lifestyle.
56 I am told by counsel that you do not have a real relationship with your biological father. You have only met him on three occasions and he has disowned you in the past and wants nothing to do with you.
57 Your mother has also had a problematic life associated with her use of drugs.
58 You have two siblings, your sister, Hayley, and a younger sister who currently lives with your mother.
59 Since your arrest you have remained in custody and you have undertaken a number of courses. I have got certificates showing me that you have done courses in Work Safety in the Construction Industry. You have done a Problem Solving Course. You have done an Arc Welding Course and you have been attending Alcoholics Anonymous. In addition you have been certified as attending Conflict Management Programs at the prison. That all augers well in terms of your future in that you are now demonstrating a commitment to want to change.
60 I have also taken into account what you wrote to me, Mr Forshaw, in your letter and I understand the context of your offending better having regard to what you have said to me.
61 I note that you have demonstrated some real insight now. You say that since you have been incarcerated you have thought over and about your actions and wish you could change or take back what has happened. You have thought about the victims a lot and cannot believe that you undertook this offending. You say that your mind is now clear and all that is left is regret and remorse for the victims and my actions. You have expressed your desire to change and make sure that things like this do not ever happen again.
62 You would also, importantly, like to take this opportunity to apologise to the courts, police and the community, especially the victims of your actions.
63 I accept that that is genuine, that expression of sorrow in relation to the victims and is indicative of your real prospects of a successful rehabilitation.
64 As stated by Mr D'Arcy, your counsel, however, all of that is dependent on you remaining drug free in the future.
65 I have also read the letter that your sister, Hayley Forshaw, provided to the court. She says that you are a lot healthier now. You are not using drugs and that she has been able to continue to visit you in the prison. She expresses hope for your future in terms of you are now telling her that you do not want to live the life that you did previously and you want to focus on being a more positive person, making a life for yourself and spending time with family.
66 In sentencing you I have to take into account a number of factors and in particular I have taken into account the mitigating factors that were detailed by Mr D'Arcy, namely, your plea of guilty that was entered at the earliest opportunity at the committal mention and your full co-operation with the investigating police officers. You did surrender yourself and you made full admissions in relation to all of these charges over the course of the two records of interview.
67 You have also expressed written remorse for your offending which I have just referred to.
68 I accept that your plea of guilty is indicative of genuine remorse. By your plea you have facilitated justice and spared the victims the further trauma of having to give evidence upon your trial, and in circumstances such as this where we have two victims who have articulated in a very telling manner the dramatic impact on their lives that these events have occurred; that is a very real consideration.
69 You have saved the State the expense and inconvenience of a trial and therefore your sentence will be discounted accordingly. It is important that this discount for the plea of guilty is a real one and is discernible.
70 I accept that your post offence conduct, that is, undertaking all the rehabilitation programs whilst in custody, is evidence that you do now have insight into your underlying offending behaviour and that you are now taking the first steps towards addressing those behaviours.
71 You have properly utilised your time in gaol and I accept that you are now drug free and enjoy good health.
72 I also note your express desire to remain drug free upon your eventual release.
73 These events, Mr Forshaw, have the very real potential to be a watershed in your life for the future. In order to ensure that you can sustain the commitment that you now express to remain away from people who are engaged in criminal offending, you must totally abstain from drugs, in order to optimise your potential for rehabilitation and a successful re-integration back into the community. I think you have demonstrated that but in the future your actions will speak louder than my words in that regard. Do you understand that? Yes.
74 You have been in custody for 224 days and I will make a declaration about your custody shortly.
75 The Crown submitted to the court that a sentencing range between seven to eight and a half years head sentence and a non-parole period of between five to seven years was appropriate.
76 Your counsel, Mr D'Arcy, submitted that the range was too high and urged the court to consider a lower range in respect to head sentence and allow for a lower non-parole period.
77 In my assessment, the range put by the Crown was too high in all the circumstances of this case, having regard to the combination of factors including current sentencing practices, your co-operation with the police, the fact that you surrendered and made full admissions and your plea of guilty entered at the earliest opportunity.
78 To impose a sentence proposed by the Crown would not reflect an appropriate discount for the plea of guilty in all the circumstances of the case.
79 In sentencing you I must impose just punishment. I must also take into account the comments that I made earlier about the need to emphasise general deterrence, that is, to deter others and also specific deterrence, that is, yourself, in relation to offending of the same or similar nature.
80 It is important that the court, on behalf of the community, manifest its disgust at these sorts of offences that you have engaged in and it is also important to establish conditions for you for the future for your rehabilitation.
81 I propose to impose an immediate term of imprisonment and to fix a non-parole period that will facilitate your supported release back into the community.
82 Could you please now stand, Mr Forshaw.
83 In relation to Charges 1, 2 and 3, that of armed robbery, you will convicted and sentenced to three years imprisonment for each of those charges.
84 Charge 4, the armed robbery, you will be convicted and sentenced to five years imprisonment.
85 Charge 5, the theft of petrol, you will be convicted and sentenced to one month imprisonment.
86 Charge 4 is the head sentence and I make the following orders for cumulation.
87 Six months of each of the sentences imposed with respect to Charges, 1, 2 and 3 shall be cumulative upon each other and the sentence that I have imposed on Charge 4.
88 That makes a total effective sentence of six and a half years imprisonment. I fix a non-parole period of four and a half years.
89 I make the Disposal Order sought. I make the order for the retention of the forensic sample. I note that it is in the community's interests that that order be made and also that it was not opposed. I have had regard to the seriousness of the circumstances of your offending and consider that order is warranted.
90 Finally, the s.6AAA declaration, but for your pleas of guilty, I would have imposed a sentence of eight years imprisonment and to serve six years.
91 I declare that you have served 224 days pre-sentence detention and direct that that be entered into the records of the court.
92 I believe that covers everything.
93 MR D'ARCY: Yes, Your Honour.
94 MS SAMPSON: Yes, Your Honour.
95 HER HONOUR: That concludes the sentence, Mr Forshaw. You will now be taken back into custody. Thank you.
96 (Prisoner removed.)
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