Director of Public Prosecutions v Fred
[2017] VCC 784
•15 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01265
CR-16-01266
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEREAPII FRED and JAYDEN LAYZELL |
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| JUDGE: | Her Honour Judge Sexton | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 20-22, 27-28 February, 1-3, 6-10, 14-17, 20-23 March, 1 & 22 May 2017 | |
| DATE OF SENTENCE: | 15 June 2017 | |
| CASE MAY BE CITED AS: | DPP v Fred | |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 784 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Offences against the person
Catchwords: Aggravated Burglary – Armed Robbery – recklessly causing serious injury - two young offenders - significant criminal records – distinct differences in their roles in the commission of serious offences
Sentence:TES: Fred – 5 years’ imprisonment with a minimum of 3 years 10 months before eligible for parole. TES: Layzell – 7 years 6 months with a minimum of 5 years 3 months before eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Sharpley for trial Mr D. Hannan for plea | OPP |
For Fred For Layzell | Mr A. Sim for trial and plea Mr M. Williams for sentence Mr J. Westmore | Hannebery Law Vale Criminal Law |
HER HONOUR:
1 Jayden Layzell and Tereapii Fred, on 23 March 2017 you were both found guilty by a jury of one charge of aggravated burglary and one charge of armed robbery, extremely serious offences which have a maximum penalty of 25 years’ imprisonment.
2 Jayden Layzell, you were also found guilty by the jury of one charge of recklessly causing serious injury, a serious offence with a maximum penalty of 15 years’ imprisonment.
3 The defence for both of you was that you were not present at the victim’s house and did not commit any of the offences. It is clear from the jury’s verdicts that they were satisfied that each of you was present and that each of you did commit the offences in the way the prosecution alleged.
4 In summary, in late October 2015, you Layzell sent a message on Facebook to the victim asking him to send you a person’s phone number or “pay the consequences”. The victim did not respond.
5 A couple of days later, on 30 October, you Layzell acted on that threat. Although there is no evidence that you Fred were aware of this message, you accompanied Layzell to the victim’s house, and I find it is consistent with the jury’s verdict on Charge 1 that you knew before entering the house that the victim’s phone was the object of the exercise.
6 Just after 6 am, you both entered the unlocked back door of a house in which a number of people were present and out of bed, and boldly passed through a number of rooms to get to the bedroom of the victim. Consistent with the jury’s verdict I am satisfied that you both knew that people were present or likely to be present and that the intent was to steal the phone and obtain the number that had been requested (Charge 1 - aggravated burglary).
7 For you Layzell, it is also likely that your intention was to be ready to carry out your threat that the victim pay the consequences for not responding to your Facebook demand. You had a hand gun with you, and that forms a second basis on which you committed the offence of aggravated burglary. As all persons present except the victim were awake, there was a significant risk that you would come into contact with them while in possession of a loaded gun, which your later actions show, you were prepared to use. These factors, together with the fact that you entered the house with a co-offender, make your offence a very serious example of an aggravated burglary.
8 For you, Fred, there is no direct evidence that you knew of the gun before or at the time of entering the house, and your counsel submitted that although there is evidence from which I could draw a conclusion that you did know about it, I should not do so. As the prosecution did not urge that I find that you did know about the gun beforehand, effectively and fairly conceding that it was a possibility available on the evidence that you did not know about it at that point, I will not make that finding against you.
9 Your offence is still a serious example of an aggravated burglary, in the circumstances in which you were entering the home, with a co-offender, with an intent to steal, and, where all persons present except the victim were awake, there was a significant risk that you would come into contact with them.
10 To make it clear, you Layzell will be sentenced for charge 1 of aggravated burglary on the joint bases that you knew people were in the house, and you had a gun. You, Fred, will be sentenced for charge 1 of aggravated burglary on the single basis that you knew people were in the house.
11 To continue with the summary of your offending, after entering the victim’s bedroom, you Layzell woke him and demanded his phone. The victim saw you Fred standing next to the bed at the head. You, Layzell, were at the end of the bed. The victim recognised you both as he had known you for several years and had seen you together not long before 30 October. The jury accepted his evidence that you were both present, which means that you did both enter the house, committing the offence of aggravated burglary on the basis I just outlined, and also means that you were both there during the rest of the offending.
12 Layzell, the victim saw the gun in your hand and you threatened to shoot him unless the phone was handed over. The victim jumped out of bed and began moving backwards towards his ensuite bathroom. You Layzell, then fired the gun to one side of the victim. A cartridge was later found on the bedroom floor.
13 The victim ran to the bathroom and closed the sliding door. At that point, he could not see into the bedroom. There is no evidence therefore as to which of you found the victim’s phone under the bed covers and took it. The prosecution case on charge 2 of armed robbery was that you, Layzell stole the phone, while in possession of the gun and having used force on the victim by firing the gun, and that you Fred intentionally assisted and encouraged Layzell in committing that armed robbery by your presence. By their verdict on the armed robbery charge, it is clear that the jury were satisfied of the prosecution case for charge 2 against each of you.
14 The firing of the gun by you Layzell, is a use of force which makes the armed robbery a very serious example of that type of offence. This also applies to you Fred, because from the time the gun was produced and the threat to shoot the victim was made in your presence, I am satisfied that you were well aware of the criminal activity you were engaging in together, and this is consistent with the jury’s verdict that you were intentionally assisting and encouraging Layzell in that crime, including when the shot was fired in the bedroom and the phone was taken.
15 After the phone was stolen, you both left the house via a glass sliding door, and the victim came out of his bathroom and went to the door to lock it to prevent you from coming back. As he reached the door, but before he could close it, you Layzell turned as you were running away and fired towards the victim. Your shot hit him in the neck and he screamed and fell to the ground. Family members then came to his aid, and police and ambulance were called. You both left the scene.
16 Layzell, the jury acquitted you of charge 3 of intentionally causing serious injury in shooting the victim, but found you guilty of charge 4 of recklessly causing serious injury. I consider it to be a very serious example of that type of offence.
17 You Fred were not charged with this offence and it was not alleged that you played any part in the serious injury caused to the victim by the shooting.
18 The victim did indeed suffer serious injury[1]. The bullet penetrated his neck, damaged his larynx, and bullet fragments became lodged in two of his vertebrae, fracturing one of them. He had surgery to fuse the vertebrae together, and remove the bullet fragments. The fracture in his neck resulted in weakness to his right arm. A tracheostomy was performed and he had that in place for eight days. He was unable to speak for about ten days, remained in hospital for 17 days, wore a cervical collar for six weeks, and suffered deep vein thrombosis.
[1] Exhibit B
19 Apart from the obvious physical trauma he suffered as a direct result of your action in shooting at him Layzell, he has continued to suffer physically and mentally, and has been using both prescribed and illegal drugs to cope with the effects.
20 For you Fred, I accept that it is difficult to separate any impact on him as a result of the overall offending in which you were involved from the shooting in which you were not involved. However, while he might have suffered these effects from Layzell’s actions alone, the evidence shows that it was the two of you confronting the victim that created the environment for the first two offences to be committed and so I attribute to you some of the psychological effects he has suffered, and continues to suffer, causing him to be constantly on edge and looking over his shoulder.
21 I also take into account in a similar way the impact statements[2] received from other family members present in the house who have also suffered considerably as a result of the actions of both of you. Life changed for them all shortly after 6 am on 30 October 2015. They are all traumatised by the invasion of the safety and privacy of their home in the early hours of the morning, and by the shooting of their son and brother. They have had to move house, some never returning after that morning, and now live in unsatisfactory accommodation because that is all that can be managed in the circumstances. As none of them, including the main victim, wanted their statements read aloud in court, I will not refer to any more detail, and have not referred to them by name, but they can be assured that I have taken the impact on them very much into account in deciding the appropriate sentences.
[2] Ibid
22 It is conceded by counsel for both of you that these are very serious offences and that the sentences I impose on each of you must reflect the need to deter others from committing such offences, deter each of you from re-offending, denounce this very serious offending, and provide punishment that is just in all the circumstances.
23 For you Layzell, it is conceded that a significant term of imprisonment must be imposed. For you Fred, while it is conceded that a term of imprisonment must be imposed, it is submitted that your position is different to that of Layzell and that your secondary role should be reflected in a lower sentence.
24 I will now turn separately to the matters that are relevant to each of you personally and that I take into account in deciding the appropriate sentence.
25 Layzell, I take into account in assessing the seriousness of your offending that there was some planning and preparation. You sent the Facebook message to the victim and you followed up on your threat that the victim would pay the consequences. At some stage, you obtained the gun, were prepared to use it, and did use it in the bedroom with the intention of intimidating and frightening the victim into handing over his phone.
26 As for shooting the victim, your counsel submitted that I should see that as unplanned, in the context of the shooting happening as you were running away. I accept that submission and so do not treat the shooting of the victim as being planned by you, in keeping with the jury’s verdict that you were not intending to cause serious injury, but that you were reckless in your actions.
27 However, I do take into account that you were prepared to use the gun, as you had already fired it in the bedroom, and that you knew that it was highly likely that your act of shooting towards the victim over a distance of a few metres would cause him serious injury, but went ahead anyway. When he appeared at the door, you did not know that he was merely going to lock it, and I find that it is likely that you fired the shot because you thought he was going to follow you, and so you wanted to put him off doing that.
28 You are still a young man at age 22 and were aged only 20 when you committed the offences. However, you have a serious and shocking criminal history which I will refer to in a moment. You come from a stable home, and when you have not been in custody, you live with your parents and will do so again on your release. Unfortunately, the good upbringing and stable family life has not prevented you from committing serious offences, and may also not prevent this in future. You went to Year 9 at school and since leaving, have worked in only one job in two six month stints at a kitchen fabrication company. You began smoking cannabis at age 13, used amphetamine and ecstasy from age 14, and then began using ice at age 18. At the time of the offending, in October 2015, you were using about 1.7 grams of ice a day.
29 In 2016, Dr Cunningham, a forensic psychologist, assessed you as having low cognitive functioning[3]. He thought that this had contributed to the problems you had at school and perhaps made you more easily influenced by others, and made it harder for you to understand the consequences of your actions.
[3] Exhibit L2
30 Your counsel submitted that this low cognitive functioning and your considerable drug use would explain your lengthy criminal history for such a young man. I agree that this provides a context to your offending history and to the offences for which I am sentencing you today, although the evidence shows that you were the main offender and were not influenced by others in committing these offences.
31 You first appeared in the Children’s Court in April 2009, aged 14, for offences including dishonesty charges. By August that year, you were charged with your first robbery. Between 2009 and 2015, amongst other crimes, you committed four armed robberies, six robberies and two attempted robberies. All but one was dealt with in the Children’s Court. One of the armed robberies involved you using a firearm. I was told that that offence was committed at a supermarket and not in a private home.
32 You have also been charged over that time with many injury and violence offences, such as intentionally causing serious injury, intentionally causing injury, four charges of recklessly causing injury, an affray, and seven charges of assault. All but two of these charges have been dealt with in the Children’s Court.
33 You have received a number of Youth Justice Centre detention orders and have been in adult gaol for two sentences, one in 2014, and the other is a sentence of 12 months you are currently serving for dishonesty and driving offences committed between April and November 2015, including 22 dishonesty offences committed in the three weeks leading up to 30 October, when the offences for which I am sentencing you were committed.
34 Your criminal history is highly relevant to the sentence I will impose today. Your counsel submitted that despite your appalling record, the fact that you are a young man should still mean that I impose a sentence which takes your age into account, and allows you some opportunity of rehabilitation. According to your counsel, you have found drug counselling helpful with Youth Substance Abuse Service (YSAS) and it is possible that you are getting to the point where you realise that you will be spending your adult life in gaol if you do not get off the drugs and stop offending. You maintain that you did not commit these offences, but apparently still understand that you are in the position you are in because of your drug use and negative peer influences. I find that your prospects of rehabilitation are very low and that there is a high risk of you re-offending.
35 However, I agree that the principle that sentencing a man of your young age should still provide some opportunity for rehabilitation, but in your case this will be less of an opportunity because the seriousness of your offences, and the seriousness of your criminal record, which includes a prior conviction for armed robbery using a firearm, mean that the protection of the community from you and general and specific deterrence are more important principles.
36 I take into account the principle of totality, by which is meant that the sentence I impose should reflect the totality of all the offending for which you will be undergoing sentence, as if the one court was sentencing you: that is, aggravated burglary, armed robbery and recklessly causing serious injury committed on 30 October 2015, as well as dishonesty and driving offences committed between April and November 2015 for which you received the 12 months’ sentence in the Magistrates’ Court. Deducted from that sentence was 294 days of the 296 days you had then been on remand since your arrest on 26 November 2015 for the offences for which I am sentencing you.
37 I have also taken into account the need to avoid double punishment where there are acts common to different offences on which you are to be sentenced. As a result, there will be some concurrency between charges 1 and 2, but it will not be significant. That is because the crime of aggravated burglary was committed the moment you entered the house in the circumstances in which you entered. Although the intent to steal is common to both the aggravated burglary and the armed robbery, what took place in the armed robbery by the threatened use of and actual firing of the gun positively added to your criminality and is deserving of separate stern punishment. It was conceded that there must be some cumulation of charge 4, but your counsel submitted that it should be “to a sensible degree”.
38 I will come back to sentence you at the end of these remarks.
39 Turning to you Fred. You are also still a young man, shortly to turn 22, and were aged 20 at the time of the offending. You were born in Melbourne of Cook Islander heritage. You had a disadvantaged background, with your father subjecting the family to years of alcohol-fuelled physical violence, until he abandoned the family when you were aged six, leaving your mother to raise four children, one younger than you, alone. Your mother struggled financially, and the family was often evicted, and sometimes homeless during your childhood. She remains supportive of you and was a constant presence in court. I take that disadvantaged background into account.
40 You progressed through your education at a number of different schools, ultimately completing Year 11 of VCAL. You chose not to do Year 12 as you wanted to work, and you had a number of factory based jobs before the offending took place.
41 You have a relevant criminal history which began in March 2009 when you were aged 13. You have appeared in the Children’s Court seven times for offences including damaging property, theft, and causing injury. Of most relevance are the two charges of attempted armed robbery, two charges of attempted robbery and two charges of burglary. All sentences involved probation.
42 In April 2015, in your first appearance in the Magistrates’ Court, you appeared on charges of recklessly causing injury, stalking, handling, theft of a car, theft, cultivation and trafficking of cannabis. You were given the opportunity of being released without conviction on a community correction order with conditions including that you be assessed for drug abuse or dependency, and mental health treatment. Your counsel told me that you used cannabis intermittently from the age of 15 to 18. If that is accurate, then the conditions imposed by the Magistrate seem surprising. Further, I have not been told that you have any mental health problems.
43 It is an aggravating feature of your offending in October 2015 for which I am sentencing you that you were then on the community correction order.
44 In February 2016, you were sentenced for offending which occurred before 30 October 2015. You were sentenced to 85 days’ imprisonment and then to be released on a community correction order. As I understand it, time in custody while you were on remand was taken into account, and so a period of 85 days is no longer available as time served for the offences for which I am sentencing you. I have not been given any further detail about those offences or the community correction order, presumably because the reason for being informed about this court appearance at all was to show the impact on the available days of pre-sentence detention on the offences for which I am sentencing you.
45 I am told that you worked in the laundry when first on remand, and then as a barber until released on bail, when you apparently worked full time in the community. You resumed work as a barber on being remanded after the verdict. You intend to work in whatever prison you are classified to and also hope to undertake training courses during your sentence. I do take into account that this will be the first time you have been sentenced to a term of imprisonment.
46 Your counsel submitted that your role as a secondary offender should result in a lower sentence than that of your co-offender, Layzell. I agree with that, and I have outlined throughout these remarks how your roles differed. Your counsel also submitted that this should also reduce your moral culpability to some extent. I do not agree with that for the reasons that follow.
47 You maintain that you were not present to commit the offences, and so no explanation has been put before me for your involvement. If you were not drug affected or suffering from any mental health issue which affected your judgment, neither of which has been suggested, and given that you have in the past committed offences of a similar nature, although less serious, it is a reasonable conclusion for me to reach that you were there to intentionally assist and encourage your mate in committing the first two serious offences, and provide support by your presence, when you had no personal motive to be involved. That suggests a calculated approach to committing these serious offences.
48 However, you are young enough to realise that continuing on this path will only mean more time in prison throughout your adult life, and you have the capacity to work in paid employment on your release and become a useful member of society. Whether you do that, or continue on this path, is up to you.
49 On balance, I find that your prospects of rehabilitation are guarded, at best moderate. Your counsel submitted that your youth should moderate your sentence, and that while principles of deterrence are very important in this case, it was submitted that rehabilitation should play an increased role. I agree that the principle that sentencing a man of your young age should still provide some opportunity for rehabilitation applies, but because of the seriousness of your offences, and your criminal record, rehabilitation will not be given an increased role over that of protection of the community from you and general and specific deterrence.
50 For you, Fred, I have also taken into account the principle of totality, and the need to avoid double punishment where there are acts common to the different offences on which you are to be sentenced, bearing in mind that you were not an active participant, playing a role of encouraging and assisting the principal offender. As a result, there will be considerable concurrency between Charges 1 and 2. However, although the intent to steal is common to both the aggravated burglary and the armed robbery, what took place in the armed robbery which you encouraged and assisted by your presence, with the threatened use of and actual firing of the gun by your co-offender, added to your criminality. It was conceded that there must be some degree of cumulation, but your counsel submitted that it should be minor.
51 Following the plea, at my invitation counsel provided cases and/or submissions as to current sentencing practice for each of the offences. The submissions were of some assistance, to varying degrees. I have had regard to all of the cases referred to. It does seem that this case provides an unusual situation of two young offenders with significant criminal records committing such serious crimes with distinct differences in their roles.
52 Stand up please, Layzell. Layzell, you are convicted and sentenced to imprisonment as follows:
53 Charge 1 - aggravated burglary - 5 years.
54 Charge 2 - armed robbery, 5 years, 6 months.
55 Charge 4 - recklessly causing serious injury - 4 years.
56 The sentence on charge 2 is the base sentence. I direct that 12 months of the sentences imposed on charges 1 and 4 be served cumulatively on the sentence imposed on charge 2 and on each other. That makes a total effective sentence of 7 years, 6 months.
57 I direct that you serve 5 years 3 months before becoming eligible for parole. I have set that term having regard to your youth.
58 I declare that you have served 202 days in pre-sentence detention not including today, and that these are to be deducted administratively from your sentence.
59 Yes, you can resume your seat.
60 Stand up please, Fred. You are convicted and sentenced to imprisonment as follows:
61 Charge 1 - aggravated burglary - 4 years.
62 Charge 2 - armed robbery - 4 years.
63 I direct that 12 months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. That makes a total effective sentence of 5 years.
64 I direct that you serve 3 years, 10 months before becoming eligible for parole. I have set that term having regard to your youth.
65 I declare that you have served 250 days not including today in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
66 Yes, resume your seat please.
67 Are there any further orders?
68 MR HANNAN: No, there were not any more. It was automatic for the retention, Your Honour.
69 HER HONOUR: Thank you. The prisoners can be removed.
70 I have just been reminded, it does not matter that Mr Layzell has left, but Mr Hannan and Mr Westmore, there is an outstanding summary offence of committing an offence whilst on bail. We did not deal with that at all on the plea, so I assume that that is going to be caught up in the subsequent hearing of the prohibited person charge.
71 MR HANNAN: Yes, Your Honour. I will remind my instructor about that.
72 HER HONOUR: So, I just wanted to alert people to that, that - - -
73 MR WESTMORE: I was not aware of that, but I am now aware.
74 HER HONOUR: Yes. All right. Well, I was not suggesting that it should have been dealt with on the plea, but my ever efficient Associate, who of course has to deal with the computer that alerts her to these charges, reminded me of it and I just wanted to bring it to the parties’ attention.
75 MR HANNAN: Yes, Your Honour.
76 HER HONOUR: All right. Well, I thank everyone for their assistance throughout this rather long running matter.
77 MR WESTMORE: Yes.
78 HER HONOUR: And I will see you, Mr Westmore, in due course.
79 MR WESTMORE: Yes, Your Honour.
80 HER HONOUR: Perhaps.
81 MR WESTMORE: Well, no, it will not be me.
82 HER HONOUR: It will not be you.
83 MR WESTMORE: As I understand it, Mr Pearson will be taking that brief. I do not know the current status of that, whether there is a date listed or not.
84 HER HONOUR: Yes. Well, it was 31 July that I was thinking about.
85 MR WESTMORE: Yes.
86 HER HONOUR: But I unfortunately had double booked myself.
87 MR WESTMORE: And that was communicated.
88 HER HONOUR: Yes, and so that means it will be later on in the year.
89 MR WESTMORE: Yes, and I understand that my instructor has liaised to an extent with Your Honour's associate to ask that correspondence with respect to that subsequent matter be sent to Mr Pearson as well.
90 HER HONOUR: Yes. All right. We will deal with that date or set that date in due course.
91 MR WESTMORE: As Your Honour pleases.
92 HER HONOUR: It might be of some interest to counsel to know that the matter that I am doing on 31 July happens to be the re-trial of Velkoski.
93 MR WESTMORE: It could go for some time.
94 HER HONOUR: My rulings will be somewhat shorter than they might otherwise have been.
95 MR HANNAN: Maybe.
96 HER HONOUR: Yes, thank you. We will stand down till 12 noon.
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