Director of Public Prosecutions v Garvey

[2017] VCC 1185

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-16-02033

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON GARVEY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2017
DATE OF SENTENCE:	22 August 2017
CASE MAY BE CITED AS:	DPP v Garvey
MEDIUM NEUTRAL CITATION:	[2017] VCC 1185

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Violent armed robbery; false imprisonment; intentionally causing injury; prohibited person possessing firearm; main offender recovering debt; discharging rifle to threaten victim

Legislation Cited:     Firearm Act 1996; Sentencing Act 1999

Cases Cited:Younan v The Queen [2017] VSCA 12; The Queen v Bortoli [2006] VSCA 62

Sentence:Total effective sentence 4 years imprisonment; non parole 2 years and 6 months, 283 presentence detention declared

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M. Page	Nicholas Rolfe and Associates

HER HONOUR: 

1Jason Arthur Garvey, you have pleaded guilty to one charge each of armed robbery, false imprisonment, intentionally causing injury, possession of a drug of dependence and being a prohibited person in possession of a firearm.  You have also admitted a prior criminal history to which I shall refer shortly.

2The maximum penalty for armed robbery is 25 years' imprisonment.  It is ten years' imprisonment for each of false imprisonment, intentionally causing injury and being a prohibited person in possession of a firearm.  For the charge of possessing a drug of dependence, the maximum is one year's imprisonment if the court is satisfied that it was not possessed for the purpose of trafficking, or five years' imprisonment if not so satisfied. Those maximum penalties reflect the objective seriousness with which Parliament on behalf of the community regards offences of this nature. 

3These offences were all committed on 18 September 2015, except for the possession of methyl amphetamine which was found on you when you were arrested the following day.

4In the early hours of 18 September 2015, you were at the house of an acquaintance in Kyabram, together with Michaela Golding-Smith and
Peter Hooper.  You were intent on obtaining money which you were allegedly owed by a man named Ashley Thomas, apparently knew he was likely to be withdrawing cash at an ATM at about that time, and you told Golding-Smith and Hooper to accompany you.

5You drove with them to an ATM in Kyabram and watched while Mr Thomas withdrew money from it.  He then walked towards a newsagency.  You told Hooper to go to bring Thomas to your car, and then you told Golding-Smith to go to tell Hooper to hurry up.  Hooper entered the newsagency and as
Mr Thomas was leaving, grabbed him by the arm and led him out of the store and towards where you stood beside your car. Thomas was then required to get into the back seat and sit beside Hooper.  You got into the driver's seat, and Ms Golding-Smith got into the front passenger seat.  The doors of the car were locked, and this is the point where the false imprisonment of Mr Thomas commenced (charge 2).

6There was then yelling between you and Mr Thomas as you demanded money from him.  You hit him across the face several times as you kept demanding the money that he had withdrawn from the ATM.  You then drove off, threatening to shoot Mr Thomas if he ran.  You reached for a pink-coloured sawn-off rifle and placed it on your lap as you drove.  You continued to make threats and demands to Mr Thomas, and then as you drove, reached for the firearm and fired two shots out of the window of the car. Mr Thomas was scared that he would be shot. 

7You drove to a remote location near the Kyabram tip, stopped the car and demanded he get out.  He refused but you got out, walked around to the rear door beside him and opened it and grabbed him by the neck and dragged him out of the car.  You then slammed his head into the side of the car, then repeatedly punched him to the head. 
As he was lying on the ground, you also stomped on his head and body.  These actions constitute Charge 3 of intentionally causing him injury.

8You took his wallet which contained the $500 he had just withdrawn, and you also took his backpack containing his clothing.  These actions, together with the possession and use of the firearm to threaten him constitute Charge 1 of armed robbery.  He was then driven back into town and left with his girlfriend.

9Mr Thomas sustained facial injuries requiring medical treatment, including soft tissue swelling to the left eye and cheekbone and a fracture of the tip of the nasal bone.  He was also terrified by your behaviour.  As I have said, the causing of injury to him is the subject of Charge 3, of intentionally causing him injury.

10At the time you were a prohibited person under the Firearms Act 1996, as you had been convicted approximately a year earlier at Shepparton Magistrates' Court of robbery, as well as other charges, and sentenced to an aggregate term of imprisonment for those. Your possession of the pink sawn off rifle that weapon whilst being a prohibited person is the subject of Charge 5.

11The following day police arrested you and Hooper, having already found
Ms Golding-Smith.  They conducted a search of your home and found, as well as hunting knives, a barrel from a .22 firearm which had been cut off, and ammunition for such a firearm. They also found in your mobile phone photographs, including one of a pink coloured rifle mounted on the wall of what was believed to be a room in your house. In searching the car you had been driving, they found a shell from .22 calibre ammunition. 

12When you were arrested and searched at the police station, police found concealed in your underwear a small plastic bag containing crystal powder which proved to be crystal methylamphetamine.  That is the subject of Charge 4. 

13Apart from the sawn-off barrel, the rest of the pink firearm has not been recovered. 

14I must assess both the objective and subjective seriousness of this offending.  Armed robbery carries a maximum penalty of 25 years' imprisonment, which signals its objective seriousness, and when it involves a firearm as the weapon, let alone a loaded one which is discharged as part of the threat, it must be regarded as at a very serious level for such an offence. The fact that you were claiming that money was owed to you does not entitle you to rob the alleged debtor of the money, let alone by using such frightening methods.  The fact that there was a relatively small amount of money stolen does not reduce the seriousness of the other features of the offence.

15While not a situation were strangers are confronted in secured premises and threatened with a gun, such as those discussed very recently by the Court of Appeal in Younan v DPP,[1] citing Redlich JA in Bortoli's case,[2] this incident was clearly a volatile situation with the risk of harm to everyone in the car, or caused by your actions.  You clearly intended to seriously scare Mr Thomas. 

[1] [2017] VSCA12.

[2]The Queen v Bortoli [2006] VSCA 62.

16The injuring of him with multiple blows to his head is also a serious instance of that offence, and was not only callous and brutal, but risked more serious injury to him.  It appears to have been unnecessary extra violence committed by you personally, as he was apparently terrified after the shots were fired by you and was captive in your car with his cash and backpack, and in the car you had the assistance by their presence of Hooper and Golding-Smith in order to achieve the robbery you wanted of him.

17The initial circumstances of the false imprisonment were relatively less serious, but the fact that after discharging your firearm you drove him to a remote location near the local tip held considerable further menace to scare him.

18The possession of the firearm is a serious instance of this charge, as it was loaded and you demonstrated that you were prepared to use it, even as a threat rather than aimed at person.  The prosecutor also points out that it has never been recovered. Its whereabouts were presumably known to you, at least initially after your arrest.  It is now presumably available somewhere for others to use and requires only readily obtainable ammunition.  These aspects indicate a considerable and ongoing danger to the community from your possession of that weapon.

19Mr Thomas has not provided a Victim Impact Statement so I do not know whether there have been any long term physical consequences of the injuries you caused, but it is clear that he was terrified at the time. Having read his evidence at the committal hearing when it was clear he was most reluctant to be seen to be giving evidence against you, I infer that he is still too scared of you or consequences to him if he took any further part, including by making a Victim Impact Statement.

20Turning to the subjective aspects of your role in this overall offending, again it was at a serious level.  Although Hooper and Golding-Smith participated, you were clearly the instigator and main protagonist throughout.  It was your idea to seek out Mr Thomas to start with, at a time and place you apparently knew to expect him to be withdrawing cash.  To this extent, the offending was planned. You were in control of the situation throughout, directing Hooper and
Golding-Smith to the extent that they had active roles.  You were driving. You brought a firearm to the events, and you discharged it apparently to everybody else's fright.  You were also the person who assaulted Mr Thomas in a very callous and dangerous way, with multiple blows to his head including against the car, then punches, then stomping on him on the ground. 

21I am told that at the time of this offending, you were a heavy user of the drug known as “Ice” and that this is a classic instance of the effect of that drug in firing someone like you to such violent and seemingly uncontrolled behaviour. Not only is being under the influence of a such drug no excuse, it is another aspect of just how dangerous this situation was, because the less in control of your thoughts and emotions you were, the more risk there was that someone could have been shot, or Mr Thomas more seriously hurt. 

22What is a further concern is that you initiated and engaged in these events within months of your being released from a term of nine months' imprisonment. 

23As I have said, I regard the offending both objectively and subjectively as at a serious level for each of the charges, except for Charge 4.  The nature of the offending, requires community denunciation, just punishment and general deterrence to be the most importance sentencing factors.  In your case, clearly specific deterrence, that is to deter you from further offending, is also very important. 

24I take into account in your favour that you have pleaded guilty to these charges.  This has occurred relatively late, and there was a committal hearing run on your behalf last November during which the victim, Mr Thomas, was cross-examined as, more briefly, was Ms Golding-Smith. The trial was fixed for the current circuit.  Nevertheless, even at this relatively late stage and despite there being strong evidence against you, including that both Ms Golding-Smith and Mr Hooper have given undertakings to give evidence against you if required, your pleas of guilty are still of utilitarian value in saving the community the time and cost of a trial, and sparing witnesses having to give evidence in front of a jury. You have, by your pleas of guilty, now accepted criminal responsibility for your actions.  It is difficult to infer much in the way of remorse for the impact on
Mr Thomas.  You do see to have reached the stage of regretting the consequences to yourself and to your family.  I shall tell you when I have imposed sentence what it would have been had you proceeded to trial and been found guilty of the same charges.

25Both Ms Golding-Smith and Mr Hooper have already pleaded guilty to much the same charges and had non-custodial sentences imposed.  Last year,
Ms Golding-Smith was sentenced by His Honour Judge Montgomery to a Community Corrections Order with only therapeutic and rehabilitative conditions, but she was only aged 20 at the time of the sentencing so fell to be sentenced as a young offender with no prior criminal record, and having taken mainly a passive role in the offending.

26I sentenced Mr Hooper last week, and although his hearing and sentence was delayed by his having left Victoria and his whereabouts having been unknown for some time, he had made full admissions to police from the outset.  He was older than you, but had no relevant prior criminal record.  His only active role had been in the false imprisonment, and he had taken strong steps towards his own rehabilitation in the meantime and had re-established himself in another state.

27Your counsel conceded that parity between the sentences of your co-offenders and you was not reasonably arguable, given your much more extensive and culpable role, and well as your criminal history. 

28I turn now to your personal circumstances.  You are now aged 26, having been 24 at the time of this offending.  I am told that your early childhood was in Queensland which is still your mother's home.  Your parents separated when you were young.  When you were aged seven, you moved to Victoria for a while, but then returned to Queensland with your mother.  Apparently you loved the lifestyle in Queensland, of going to the beach and being active, and you did not get into any particular trouble while growing up in Queensland.

29When young, you were diagnosed with possible Attention Deficit Hyper-Activity Disorder, and your mother decided against giving you medication for that condition.  Although I am told that she now regrets that decision, it seems to me that she took a decision she thought was in your best interests, and should not be blaming herself for that. That was not what got you into trouble. 

30I am told that when you were aged 15, you moved to Rushworth with your father to live with your father's elderly parents.  You missed your Queensland lifestyle and friends there, and took up with a crowd who were drug users, and quite rapidly led you into trouble.  At age 16, in 2007, you were before the Children's Court, as you were the following year, that time for driving offences and burglary but no particular violence.

31I am told that at age 18, you had reformed from that earlier offending.  You had met the woman who became and remains your partner.  I am told that she has never used drugs nor been in criminal trouble.  You and she have had two children since, and she is a full-time mother raising them.

32I am told that at age 18, you started an apprenticeship as a butcher, but due to personality issues where you working, you did not complete that.  You did, however, obtain other work, and have worked in abattoirs when not in custody. 

33In 2011, you were sentenced in Bendigo Magistrates' Court for multiple charges.  These included many driving offences such as driving in a manner dangerous and driving while your authorisation was suspended and multiple instances of speeding.  Of greater relevance were charges of recklessly causing injury, assault in company, assault with an instrument and handling stolen goods. You were sentenced to six months detention in a youth training centre. 
The imposition of that sentence, when you were aged 18, and your only prior criminal history had been for matters for which non-conviction sentences had been imposed, reflects that the matters for which you were sentenced in 2011 must have been significantly more serious.  You apparently do not recall the circumstances of that offending. 

34On your release, you obtained further work at an abattoir, however I am told that at age 21, a friend offered you the drug ice which you tried and liked, and which has led you into much further trouble and court appearances.  In January 2014, you were sentenced for offences again ranging through driving offences to some of violence including criminal damage, unlawful assault, making a threat to kill, threatening to inflict serious injury and contravening a family violence intervention order. You were sentenced to a Community Corrections Order to last for 12 months with conditions including for rehabilitation and therapeutic treatment.  You were also sentenced to an aggregate of three months' imprisonment, and having already spent more than that time in pre-sentence detention, it was reckoned served.  You breached that CCO by further offending and in June 2014, were sentenced to six months' imprisonment, and in September 2014 to an aggregate sentence of 175 days imprisonment of which 129 days were suspended for 18 months. That meant that you served an actual nine months' imprisonment from mid-2014, and were released on 15 March 2015, with the balance of almost four months of a suspended sentence hanging over you.

35I am told that following your release in March 2015, you resumed living with your partner and young children, and initially were handling matters satisfactorily but by June, you had relapsed into the use of “Ice” and were back in bad company, and you committed numerous further offences in June and July 2015. 
You remained at large until arrested on 19 September being the day after the offences against Mr Thomas.

36You have been in custody ever since then, that being almost two years, but not solely on remand for the matters on which I sentence you, because in June last year, you were sentenced in the Magistrates' Court for the offending that had occurred in June and July 2015.  For that, you were sentenced to 12 months' imprisonment and additionally, the 129 days of the previously suspended sentenced were restored to be served cumulatively.  That had the effect that in June 2016, you were sentenced to serve almost 16 months imprisonment. That sentence expires next month.

37The time you were in custody remanded for the matters with which I am dealing, from 19 September 2015 until your sentence in June 2016, totals 238 days and will be reckoned as served towards the sentences I impose.

38Although it is the only 238 days just mentioned which will formally count towards the sentences I impose, I must take into account that you have spent more than that time in custody over the last three years, and the principle of totality requires me to moderate the sentences I impose to take into account the total time you will have been in custody.  As I understand it, you have spent the last 23 months in custody, prior to which you were in the community, albeit committing these and other offences, for some six months, and prior to that spent 9 months in custody. For someone of your age, between ages 22 and 26, you have spent 32 of the last 38 months in prison, and that only needs to be stated to reflect what a serious waste of your younger years you have made. 

39I am told that notwithstanding this history, and that some of the offences for which you were imprisoned involved breaching an intervention order which your partner took out to protect herself and your children from you when you were using drugs, she has remained supportive of you, and does intend to have you back living with her and the children when you are released.

40Your mother has also been in court, and clearly very distressed to hear your history related to me.  Of particular distress has been the fact that you have been in prison when there have been two deaths in your family.  The first was of your grandfather, and you were unable to attend his funeral. But even more tragically, your older brother passed away leaving the whole family devastated, and you were in prison, and not allowed to attend his funeral. That means you were not able to be present to share and give comfort within the family in that period of mourning.

41I am told also that you have missed important milestones with your young children, including already the first day of school for the older one, and inevitably the first day for the younger child as that will be early next year, and you recognise that you will be in custody then.

42It is a great pity that it has taken these types of events to bring you to the realisation of how important it is to change your ways, and to stay away from drugs and out of trouble on your next release, if you want to share with your family the occasions which are best enjoyed, but also being there for mutual support in sadder times.

43I am told that all of these events have made that impression on you in your latest period in custody which, as I say, has been the last 23 months.  I am told that when you are eventually released and depending on decisions that will be made by the Parole Board, it is intended that you and your partner and children will move back to Queensland to live, where you hope to find work and to establish a more stable, drug-free and law-abiding and hopefully, for you and your family's sake, a happier life.

44At age 26, you are still relatively young, although you have now established a serious criminal history, and will have served a considerable number of years in prison before you are eventually released.  Having regard to the seriousness of this offending, and indeed coming as it did so soon after your release from a previous term of imprisonment, your rehabilitation will not be of primary importance in your sentence.  However, at your age the sentence should not be so severe as to be crushing and to discourage you from what I am told is your current resolution to address your drug abuse problems and to establish a stable and responsible lifestyle in the future.  That is not only in your own and your family's best interests but also, ultimately, in the community's interests.

45Given your history over the last few years, your prospects of rehabilitation cannot be said to be more than guarded, but if you can maintain your resolve to change and to commit to staying away from drug use and drug users, there is still time and scope for you to achieve a stable and responsible future life.

46As I have previously stated, community denunciation, just punishment and both general and specific deterrence are important purposes in your sentence, and while I do not overlook that your rehabilitation should be encouraged, it is of lesser priority but not irrelevant.

47As was conceded on your behalf, the seriousness of this offending means that no sentence other than a term of imprisonment would be appropriate to meet sentencing requirements. As these offences all arose out of the same set of events, apart from the possession of the methyl amphetamine, there will be considerable concurrency, but in my view the beating of Mr Thomas, the possession of the firearm, and to a lesser extent the menace of the false imprisonment, all require some cumulation to reflect that this incident was more protracted and involved further criminality than the armed robbery alone.

48Given the overall time that you will have spent in prison, I have decided to fix a minimum non-parole period somewhat shorter than might have been appropriate had this been a single sentence you were serving.  I note that there was no minimum term fixed for the sentences you are currently serving, and all but approximately a month of those has been served before this sentence commences.  I also note that the prior sentence of nine months was all served.

49It will be for the Parole Board to decide whether you are in fact released at the earliest date that I fix, in contrast with previous sentences under which you had a known end date.  This time you will need to convince the Parole Board that you should be released, and will have the supervision, structure and responsibilities of parole on your release.  Hopefully this time you will be able to remain committed to - your resolve to reform your ways, give up the drugs and re-establish yourself in your family for the future.

50Finally, in relation to the charge of possession of methylamphetamine, the amount found was not large, but there is sufficient information about you having been trafficking drugs - indeed, claiming a drug debt from Mr Thomas - to indicate that it was unlikely to be solely for your own use.  In the circumstances, I am not satisfied that was found in your possession was not for purposes of trafficking, and for that reason, the higher maximum penalty is invoked.  For those reasons, in my view the possession of the methyl amphetamine does warrant a term of imprisonment, but a short one as it was relatively little, and no actual trafficking transaction is described on the day of the other offending or indeed the day it was found in your possession. 

51Would you stand up now please?  Jason Arthur Garvey, on each of the charges you are convicted and sentenced as follows.

52On Charge 1 of armed robbery, three years and two months' imprisonment.  That is the base sentence.

53On Charge 2 of false imprisonment, six months' imprisonment.

54On Charge 3 of intentionally causing injury, 18 months' imprisonment.

55On Charge 4 of possession of a drug of dependence, one months' imprisonment.

56On Charge 5 of being a prohibited person in possession of a firearm, 12 months' imprisonment.

57I direct that five months of the sentence on Charge 3, four months of the sentence on Charge 5 and one month of the sentence of Charge 2 be served cumulatively on each other and on the sentence imposed on Charge 1. That creates a total effective sentence of four years' imprisonment, commencing today.  I fix a minimum term before you can be eligible for parole of two years and six months.  I declare 238 days of pre-sentence detention as reckoned served, and I direct that that be recorded in court records. It will be deducted administratively.

58For the purposes of s.6AAA of the Sentencing Act, I state that had you not pleaded guilty but been found guilty after a trial of each of these charges, I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.

59Now application was made for a disposal order in relation the knives, drugs and sawn-off barrel of the firearm.  I will make those orders in the appropriate form. 

60Application was also made for a forensic sample to be taken from you.  I gather that one has not been in the past.  The purpose of that is for your DNA to be placed on the state's database.  I regard that as appropriate, having regard to the seriousness of the offending and I note it was not opposed on your behalf.

61I limit the order to the taking of a sample by a scraping from the mouth - it is of saliva.  That means that if you do not resist, it is not very intrusive.  It is the rubbing of a swab on the inside of your cheek.  I warn you however, as I must, that if you resist the taking of that sample, police can use reasonable force to take it.  Otherwise, as I have said, it is not intrusive and should not hurt. 

62You can take a seat now while the arithmetic and ancillary orders are checked and anything else I might have forgotten. 

63MR PAGE:  I apologise, could Your Honour could go through the orders for cumulation again?

64HER HONOUR:  Yes.  Well, the three years, two months on armed robbery is the base sentence.

65MR PAGE:  Yes, Your Honour.

66HER HONOUR:  Five months - sorry, I have just got to find the page.  I think it was Charge 3 - five months of the sentence for intentionally causing injury.  Four months on Charge 5 which is prohibited person in possession of a firearm.

67MR PAGE:  Yes.

68HER HONOUR:  And one month of - for the false imprisonment, Charge 2.

69MR PAGE:  Yes, yes.  Thank you, Your Honour.

70HER HONOUR:  All cumulative on each other and on the base sentence.

71MR PAGE:  Yes.

72HER HONOUR:  So I think that is four years.

73MR CORDY:  Yes.

74MR PAGE:  Yes it is, Your Honour.

75HER HONOUR:  All right.  Is there anything else ‑ ‑ ‑

76MR CORDY:  No, Your Honour.

77HER HONOUR:  ‑ ‑ ‑ I need to deal with on that one.  All right, Mr Page, if you want to talk with your client, I will ask that he be kept here in the court room for a few minutes.

78MR PAGE:  Grateful for that, Your Honour.

79HER HONOUR:  His mother and partner can talk to him but there is to be no contact.

80MR PAGE:  Yes, Your Honour.  Grateful for that.

81HER HONOUR:  So I think we covered this last week, the summary charge.

82MR CORDY:  Withdrawn, Your Honour.

83HER HONOUR:  All right, I have signed the orders so they will be ready to accompany Mr Garvey, but as I say I will ask that he be allowed to remain in the - I will ask that he remain here and his counsel can talk to him and his mother and partner can but without contact.

84MR PAGE:  Thank you, Your Honour.

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