Director of Public Prosecutions v Garland
[2016] VCC 10
•20 January 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-15-01353
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE GARLAND |
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| JUDGE: | JUDGE SMALLWOOD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 19 January 2016 |
| DATE OF SENTENCE: | 20 January 2016 |
| CASE MAY BE CITED AS: | DPP v Garland |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 10 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | |
| For the Accused | Mr M. McGrath |
HIS HONOUR:
Wayne Lee Garland, you have pleaded guilty to one charge of armed robbery, one charge of a prohibited person possessing a firearm, and one charge of possession of a drug of dependence, that being in a small quantity. Those crimes carry maximum penalties of 25 years, ten years, and a monetary penalty.
2 In all the circumstances here, insofar as the possession of a drug of dependence is concerned, I simply convict and discharge.
3 You pleaded guilty to a settled indictment and must get the benefit of that. You have written a letter to the court, which I take into account, and I accept for sentencing that there is, in the ultimate at least appropriate remorse.
4 You obviously must receive the utilitarian benefit of the plea of guilty, and when one reads the victim impact statement that has been filed, the saving of a trial is of a great relief to the young person in this situation.
5 You are now 41 years of age. You have an extensive prior history, mainly relating to drugs as I understand it, but unfortunately for you, there are burglaries and, it would appear to be at least, two prior convictions for armed robbery, they having been sentenced of course on the same day.
6 I note at this point, having discussed it with your counsel, that you received six years with a non-parole period of four years and six months in New South Wales. I accept that that was after a trial, and accordingly can be a little bit misleading. I am also not aware as I sit here as to whether at that period of time, New South Wales had remissions or not. In any event, you know how serious armed robbery is, and you have done it before.
7 On my calculation, you have been actively imprisoned on something like eight or nine occasions. You have now been in custody for in excess of 14 months. During the course of that, you did a sentence of six months, which was imposed upon you by me after a trial, and I take that into account in a Renzella way, and also that there is a lost opportunity for concurrency, bearing in mind that you have ultimately pleaded to a settled indictment. You have actual pre-sentence detention of 260 days, as I have discussed with your counsel.
8 The circumstances surrounding the offending are that on 5 November 2014 you parked at a Red Rooster in Morwell. You went to the front entry of the store and apparently watched the manager remove a cash drawer from the register and take it out the back. He had noticed that your car had pulled up. You entered the store, went past the counter and out the back. You were disguised. You went into the manager's office. You were carrying a firearm, which clearly was a sawn-off .22 rifle. All this is shown on CCTV footage.
9 You told the manager to get on the floor, and another member of staff was also told to get on the floor. You demanded the money, went to the manager's office, and emptied the contents of the safe into a purple bag. It was at that point that you placed the gun flat down on a bench, and it was from that that CCTV was able to provide an identification of it. I do not need to go, into the circumstantial evidence linking that gun to you.
10 You left with approximately $2,170 and were arrested shortly thereafter. The firearm was found in a room occupied by you. A small amount of cannabis was found. I have already dealt with that.
11 I have before me a victim impact statement which clearly outlines the consequences that offending of this nature has on young people, and indeed older people. The victim says that:
"I was always scared, paranoid while working, thinking it's going to happen again soon. After months of trying to keep working with fear and stress, I had to resign from my fulltime job, which led to me being unemployed. Until this day, I'm having trouble finding a fulltime job or even a part time job."
12 He goes on to say he is scared of the dark, and he describes the psychological problems that this has caused. That is why crimes such as armed robbery of this sort - invariably almost - attract an active custodial sentence, and it must be one of sufficient proportion to show the denunciation that the public demand.
13 It is obviously serious, and your situation requires the application of general and specific deterrence. There is no Verdins propositions here, and in the ultimate is what is an appropriate punishment for someone in your situation. Clearly a form of custodial sentence is inevitable, and your counsel did not demur from that proposition.
14 What was put to me by your counsel was that a period of slightly less than two years plus a community corrections order would be sufficient. The Crown position was that that would be an error.
15 Having discussed it with counsel and without seeking concessions from anybody, it has been agreed that I am able to impose a sentence of less than two years as a matter of law, and then, if I think there is a sufficient reason, not declare part of the PSD. That would have the effect of you serving a longer period of time than what would effectively be the minimum that I would be setting. In the end, I am satisfied that that is the appropriate course to take.
16 Firstly as I have said, I am well aware of your prior convictions. You have now been in custody for about 14 months. As I have said, you did the six months of a straight sentence that I imposed back in May, and I take that into account. The 15 months obviously, plus that six, also gives rise to me considering totality.
17 Your counsel provided very helpful submissions and a chronology, and you provided a letter in which you indicate your views about all this, and your determination to rehabilitate. I accept that what is in that letter and what you have said is genuine.
18 I think it is clear to me that in this particular situation, gaol has finally had its effect upon you. You are undergoing this sentence in protection and will continue to do so. You are subject to threat from other prisoners because of the medication that you take and are always at risk of being stood over. In that situation, gaol is not a particularly friendly environment.
19 You have also been in the circumstances of having been in custody when the riots took place, and various actions which were taken by authorities in regard to all that.
20 You do have children. You have grandchildren in this area, and it is your desire to try and reconnect with them. I accept that you have not used drugs since you have been in custody, though you clearly have had a drug problem in the past.
21 You are regarded by Corrections as a high risk of reoffending, and no one could really disagree with that if they looked at your prior history. However, in these circumstances I am prepared to give you the benefit of the doubt in relation to that because of the expressed attitude, and because of your plea of guilty to these matters.
22 I do not think in this situation there is any point in me going through all your prior history. You are 41. Childhood has got very little to do with all this. You have clearly been in and out of gaol all your life. I suspect that you have not been institutionalised, which is something of a saving grace, and what it comes down to is that your prospects for rehabilitation, while guarded, remain entirely with you. The risk of you reoffending will be your choice.
23 I have had you assessed for a community corrections order and you have been found suitable. What I will be doing is imposing a custodial sentence to be followed by a community corrections order. Obviously that corrections order will be with conviction. What I will then do is declare a portion of the time that you have been in as PSD, and I think I have clearly outlined, particularly in regard to discussion with counsel the reasons why I am doing that.
24 In a sense, the community corrections order is a replacement for a non-parole period, and you must realise that to reoffend during the course of that community corrections order, particularly in this sort of way, would result in you being sentenced relatively severely, I would have thought. This is an opportunity for you and it is one which you are simply going to have to accept, or you are going to spend a lot more time in gaol.
25 I have now had you in front of me a number of times through contested trials and the like, and I can simply say this, that whilst you contested the earlier trials and this matter took a while to resolve, it seems from the submissions made by counsel that you have conducted yourself sensibly and without wasting the time of the court, and I take that into account.
26 They are all the matters that I do look at, and whilst on the face of the record this sentence might seem lenient or even merciful, I think the reality of it is that it is appropriate.
27 Accordingly, on the charge of armed robbery, you are sentenced to be imprisoned for a period of 18 months.
28 On the charge of prohibited person, ten months.
29 I direct that five months of that ten months be served cumulatively on the 18 months, giving an effective sentence of 23 months.
30 Insofar as PSD is concerned, of that 260 days I direct that 120 days be reckoned as having been served under this sentence. If you agree, upon your release you will be entered into a community corrections order for a period of three years, with the conditions that I have outlined. You will be asked to sign that in a moment, and if you do this sentence will stand.
31 I just make it clear that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of six years with a minimum of four.
32 All right, does that cover everything?
33 MR DOYLE: Can I just check something?
34 HIS HONOUR: Yes, check the maths.
35 MR DOYLE: Yes, the CCO is on both offences, Your Honour?
36 HIS HONOUR: Yes. Not on the drug.
37 MR DOYLE: Yes. And the conditions.
38 HIS HONOUR: And those conditions, yes. Treatment or drug, reoffending and supervision. So I will be quite transparent with this, what that really adds up to is taking into account lost opportunity for concurrency. There clearly would have been very significant concurrency. You are looking at an effective sentence for him of two-and-a-half and a bit as a minimum term. And when I am saying that, you can link that in with the 6AAA, six with the four, and you can see where it is coming from. It is about a third off.
39 MR DOYLE: Yes, Your Honour. The other order we sought last time was a restitution order for the money the police seized. We had a discussion about this. Can I just check ‑ ‑ ‑
40 HIS HONOUR: Yes.
41 MR DOYLE: I think we had a discussion about whether it's needed.
42 HIS HONOUR: I can't remember.
43 MR DOYLE: We did.
44 HIS HONOUR: Yes.
45 MR DOYLE: The informant tells me it will just be given back.
46 HIS HONOUR: Well that is what I would have thought, yes. I do not think he is going to argue with you.
47 MR DOYLE: Could I just have a moment.
48 HIS HONOUR: Yes, of course.
49 MR DOYLE: Your Honour, can we just look one thing up?
50 HIS HONOUR: Yes, go for your life. I have given a 6AAA even though I think it is probably not necessary, just so he understands the benefit he got from this.
51 MR MCGRATH: I'm just thinking out loud, Your Honour.
52 HIS HONOUR: No, that is fine.
53 MR MCGRATH: I might as well think out loud.
54 HIS HONOUR: I appreciate doing this with counsel. This sort of stuff these days can get quite complicated, and I would rather, if I have done something that is incorrect, I would rather know now.
55 MR MCGRATH: It may well be only because I haven't had too many of these type of sentences before, but the only query I have, Your Honour, is whether or not Your Honour can sentence - is Your Honour's sentence effectively for the armed robbery 18 months plus a three year CCO, and for the prohibited person ten months plus a three year CCO with five months of that sentence to be served cumulatively? Or does Your Honour have to sentence on imprisonment for one and a CCO on another offence.
56 HIS HONOUR: No.
57 MR MCGRATH: That was the only concern I had, Your Honour.
58 HIS HONOUR: No, I have done this heaps of times. What effectively happens is - I used to do this all the time and it was only three months. If you had a person who had done nine, you would just go home. What you do is, I give a gaol sentence. So I get a total effective of 23 months. The CCO follows the total effective. Therefore, it is on the two charges that gave rise to the total effective.
59 MR MCGRATH: So in relation to the sentence for the armed robbery, it is an 18 month sentence plus a three year CCO.
60 HIS HONOUR: Yes.
61 MR MCGRATH: And the prohibited person, it's a ten month plus a three year CCO.
62 HIS HONOUR: Yes, that is now how it is expressed, but that is realistically what occurs.
63 MR DOYLE: Because Your Honour, s.44(1) says, "When sentencing an offender in respect of one or more than one offence, a court may make a community corrections order in addition to imposing a sentence of imprisonment, only of the sum of all the terms of imprisonment".
64 HIS HONOUR: Only of what? Of the sum, that is right.
65 MR DOYLE: I know this is contemplating more than one offence. Clearly. They're talking about one or more offence.
66 HIS HONOUR: I think it is more directed at the Magistrates' Court, actually, because of all the consolidations and things.
67 MR DOYLE: Yes.
68 HIS HONOUR: Yes. This might just take a couple of minutes to get completed.
69 MR MCGRATH: I suppose Mr Garland's probably thinking, "What's the effect of that?"
70 MR DOYLE: Nineteen months.
71 MR MCGRATH: My understanding is, Your Honour, that means that he will be released to commence his community corrections order in 19 months from today.
72 HIS HONOUR: That is what I intended. Round to give or take. Around about that.
73 MR MCGRATH: Give or take a couple of days, but the total effective sentence is 23 months, less the 120 days reckoned as served.
74 HIS HONOUR: Yes.
75 MR MCGRATH: Which is roughly close to four months.
76 HIS HONOUR: Yes.
77 MR MCGRATH: Giving a 19 months between now and when he commences his CCO or ought commence his CCO.
78 HIS HONOUR: Yes. Bearing in mind that that is subject to what happens in a gaol. So if he goes into a lockdown, he is going to get three for one, which has got nothing to do with me, but that is the longest he can do is what that is.
79 MR MCGRATH: Yes.
80 HIS HONOUR: But if there is a lockdown or whatever, then he will get less.
81 MR MCGRATH: And for the purpose - I don't know if Mr Garland picked that up, but it's something I'll explain to him. Your Honour made a 6AAA declaration of six years with a minimum of four, meaning that if Mr Garland had have run this case on the Red Rooster alone ‑ ‑ ‑
82 HIS HONOUR: He would have got six with a four.
83 MR MCGRATH: ‑ ‑ ‑ he would have got six with a four. And as to whether or not he would have served the entire six, well that is not a matter for Your Honour; that's a matter for the parole board.
84 HIS HONOUR: Not a matter for me, but we know what would have happened.
85 MR MCGRATH: And if he was to be sentenced for the Subway at Morwell, which of course he wasn't, it could only have been more than six with a four.
86 HIS HONOUR: And it was the same sort of armed robbery, so it would have been significantly more.
87 MR MCGRATH: Yes.
88 HIS HONOUR: We would be heading, after a trial.
89 MR MCGRATH: Yes.
90 HIS HONOUR: Probably eight, something like that. Just so he knows.
91 MR MCGRATH: Yes, all right.
92 MR DOYLE: And we don't need DNA, Your Honour.
93 HIS HONOUR: I'm sorry? You do not need that order?
94 MR DOYLE: I mentioned DNA last time, but it's automatic.
95 HIS HONOUR: Yes, that is nothing to do with me.
96 MR MCGRATH: Can I approach Mr Garland, Your Honour?
97 HIS HONOUR: Yes, of course.
98 MR MCGRATH: Thank you, Your Honour.
99 HIS HONOUR: Again, this will be the subject of revision, so when I talk about totality, on my calculation, on the sentence I have given, he will have done 33 to 34 months when he is released, which to me is not insignificant.
100 (At this stage the court proceeded with another matter.)
101 You have explained to him what?
102 MR MCGRATH: I have, Your Honour. Yes, I'm going to go down and see him.
103 HIS HONOUR: Yes.
104 MR MCGRATH: It's a complicated sentence in the sense that there are a number of factors that ‑ ‑ ‑
105 HIS HONOUR: There are a number of factors involved and it just gets to the stage where enough is enough, I think. It is up to him. I mean, I accept what he is saying is genuine. If he falls over, it is not my problem. He is no amateur, I will give you that.
106 All right, that is done. Just stand up for a moment, Mr Garland, will you? What I have done is this. By the time you get out, you will have done a bit over 33 months on my calculation. You have then got a CCO for three years, all right? Now you know, and everyone in the room knows you have reached the end of the penny section with all of this with gaol time.
107 You have been locked up over nine times over your life. I have seen plenty of blokes in their late 30s early 40s have turned it around. They just do not want to be in gaol anymore, all right? You do not want to be sitting there when your only topic of conversation is what it was like in Barwon or what it was like. You do not need that.
108 Now you have got to get locked up for this, and you have got to get significant lockup. You heard the victim impact statement and that is what happens to the kid on the other side of the counter.
109 ACCUSED: Yeah.
110 HIS HONOUR: All right, so you know all that. What I am simply saying to you is, if you are brought back before for breaching this, you are going to get more. Significantly more.
111 ACCUSED: Yeah.
112 HIS HONOUR: All right?
113 ACCUSED: I thought - I just thought I should've got a bit more of a back date, that's all.
114 HIS HONOUR: Yes, I understand why. No look, it is not a matter of negotiation.
115 MR DOYLE: Yes.
116 HIS HONOUR: As I said before, you cannot jump over counters with a shooter and kids on the other end of it. You have to get a whack, all right? And what I have done is taken all the matters into account, and you have been very ably represented, I will tell you that. That is about as good as I can do for you, I think. All right?
117 ACCUSED: Yep.
118 HIS HONOUR: All right.
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