Director of Public Prosecutions v Gillespie

[2014] VCC 2338

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01681

DIRECTOR OF PUBLIC PROSECUTIONS

v

CORY AARON GILLESPIE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF SENTENCE:	22 January 2014
CASE MAY BE CITED AS:	DPP v Gillespie
MEDIUM NEUTRAL CITATION:	[2014] VCC 2338

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms I. Dipietrantonio
For the Accused	Mr A. Paull

HER HONOUR: 

1Cory Aaron Gillespie, you have pleaded guilty before me to one charge of theft and one charge of attempted armed robbery and have admitted prior convictions.  The facts underlying your offending are as follows. 

2On 27 May 2013, you visited your great-aunt Margaret Raymond at her home in Mentone, taking with you when you left the spare key to her car.  Later that night you went to an address where your aunt had driven in Parkdale to visit a friend.  Being aware the car was there, you used the spare key to open the car, rolling it down onto the street and driving away.  You took the car without permission and these actions underlie Charge 1 on the indictment, theft.  Ultimately your great aunt reported the car stolen the next day.  On 7 June it was found in a car park in Seaford, by which time the numberplates had been removed and the car damaged.

3Charge 2, attempted armed robbery, refers to an incident on 2 June 2013, when you met the co-accused Michael Vains at a shopping area in Seaford.  The two of you discussed a plan to commit an armed robbery on a local milk bar.  You discussed this plan with two other young people, aged 13 and 15, who were both residents at the same youth care facility as you.  At about 8 pm that day, you, Vains and another young person, Katie McIntyre, walked to the Austin Street Shopping Centre, you and Vains entering the milk bar, where you were seen by the shop attendant, the 13-year-old son of the shop owner. 

4He became suspicious and called his mother, who confronted the two of you.  You seem to have made yourselves fairly obvious by wearing dark hoodies and hiding under the table.  The two of you then left.  You returned alone a short time later trying to buy some items but leaving because you did not have your wallet.  It seems that the three of you decided this was not going to work and you left the area, but the next day returned in the car you had taken from your aunt and Vains entered the milk bar whilst you waited in the car outside.  He took with him a steering wheel club lock concealed in his pants, then approached young Stephen Nguyen, who was again working as an attendant, raising the club lock and demanding money. 

5Nguyen, however, recognising Vains, refused, telling him to "fuck off" and later telling police he did not feel particularly threatened by Mr Vains' actions.  Mr Vains ran out of the car yelling "go, go, go" and you drove to nearby tennis courts where the car was abandoned.  Vains was arrested and interviewed on 7 June 2013, making full admissions to planning the attempted armed robbery with you and admitting he had gone to the milk bar with a club lock and demanded money.  You were arrested and interviewed on 13 June 2013, where you also made full admissions to taking your great aunt's car, planning an armed robbery and driving with Vains to the milk bar on 3 June and describing the unsuccessful attempt made by you and Vains.

6You were charged.  The matter was resolved on 2 September 2013 prior to committal mention and you were remanded in custody for five days in relation to these matters.  The maximum penalty available for attempted armed robbery is 20 years' imprisonment and the maximum penalty available for theft is ten years' imprisonment.  Because the theft comprises theft of motor vehicle, I must suspend or cancel your driver's licence for whatever period I find to be appropriate.

7You have admitted to prior convictions, which essentially comprise three previous appearances before the Children's Court, the first in 2010, for lighting a fire in an open area, threatening to damage property and attempted theft of motor vehicle, arson and unlawful assault and other charges, for which you were placed on a period of probation.  Then in September 2010 you were placed on a good behaviour bond for unlawful assault and in February 2011 were place on a further good behaviour bond for criminal damage and unlawful assault.

8I received extremely helpful reports in relation to this matter, primarily a report from Warren Gardiner from the Southern Melbourne Youth Justice Unit dated 20 January 2014.  On 17 June last year you were placed on supervised bail, which has been overseen by Mr Gardiner.  In his report he described and referred to your background, where you are the only child born to your parents, you having been essentially raised by your mother, although ultimately Child Protection became involved between 2008 and 2012, whereby you were sent to various youth residential units.  Effectively the report states that you have had a lot of problems in your life, Mr Gillespie.

9You have a slight intellectual disability.  There have been lots of problems with accommodation and education.  Of particular interest to the court today, however, is the fact that in September last year a very substantial disability support package was obtained for you, whereby you have been placed in independent accommodation in a purpose-built apartment in Hastings, where you moved shortly before Christmas.  You also have access to, for four hours a day, up to seven days a week, one-to-one support work. 

10Mr Gardiner stated that your location to this new situation, this new place where you are living, has been, "Accompanied by a surprisingly marked shift in his general demeanour, level of maturity and attitude towards his broader lifestyle.  Mr Gillespie has displayed a notable inclination towards establishing an independent adult lifestyle, demonstrating an unprecedented focus on developing day-to-day living skills such as shopping, cleaning and cooking.  He has also indicated a strong interest in participating in structured constructive activities and has just commenced swimming at the Jubilee Park Aquatic Centre in Frankston."  You have got some new furnishings and you started sitting the exam to get your learner's permit and "have expressed keen interest in finding employment". 

11So it seems that you have done very well on your supervised bail, Mr Gillespie.  You are still young, you are only 18, therefore issues of rehabilitation dominate the sentencing exercise before this court.  The offending, while serious, was fairly amateur and did not - particularly in relation to the attempted armed robbery - have the usual effects.  The victim in this matter, Stephen Nguyen, seemed particularly unimpressed by what
Mr Vains was trying to do.  You have gone on in the time since to very much improve your lifestyle and not to offend any further.  It was submitted to me, and I note that the prosecution agreed with this course of action, that I have you assessed for a community corrections order and you have been found suitable. 

12Do you understand what I am saying here, Mr Gillespie?  Basically you have done very well on supervised bail and, because you are a young man and you are doing well, I am not going to put you in gaol.  I have had, as I said, you assessed for a community corrections order and the community corrections officer described you in her report as "polite and cooperative".  You told her that at the time of the offending you had been using methylamphetamine.  You were trying to get cash to buy drugs and food.  You were using the car to live in.  You have told her that you are no longer knocking around with the people you were involved with on that day; that is Mr Vains.

13So I am going to place you on a community corrections order, which has been explained to you but which you have to agree to going on before I can impose it.  I need to explain to you what the fundamental conditions are.  While you are on the order you must not commit any offence punishable by imprisonment.  You have to report to the community corrections officer within two working days, that is by Friday.  You must accept visits from the Office of Corrections; you must obey all their lawful instructions.  If there is any change of address or employment, you have to notify the Community Correction Office of that change within 48 hours and you may not leave Victoria without the permission of the community corrections officer.

14In addition it is recommended that you undertake unpaid community work.  I am going to impose 100 hours of unpaid community work.  You must be assessed and undertake treatment, including testing for drug and alcohol.  You must engage in assessment and treatment for mental health problems and you must undertake any offending behaviour programs which are recommended by the Office of Corrections.  There will be a condition that you be supervised.  I am going to order that the community corrections order last for a period of 18 months.  Do you agree to be placed on that order? 

15OFFENDER:  Yes.

16HER HONOUR:  Thank you.  We will just get it prepared and we will get you to sign the paperwork.  All right, thank you.

17Pursuant to s.6AAA I declare that had Mr Gillespie not pleaded guilty, I would have sentenced him to a term of imprisonment of 18 months in a youth justice centre and order that he serve a minimum term of ten months.

18MS DIPIETRANTONIO:  Your Honour, just two things.  Firstly, for the record, if Your Honour could indicate conviction or non-conviction in relation - - -

19HER HONOUR:  Yes, the order is a conviction.

20MS DIPIETRANTONIO:  Thank you, Your Honour.  Secondly, I'm not sure whether Your Honour needs to specifically state that one of the conditions is that he comply with any directions of Disability Services as part of the community order.

21HER HONOUR:  Yes.  Well, a further condition will be that Mr Gillespie comply with directions of Disability Services.

22MS DIPIETRANTONIO:  Thank you, Your Honour.

23HER HONOUR:  All right.

24MR PAULL:  As Your Honour pleases.

25HER HONOUR:  There will be a community corrections order in relation to each of the charges.  They will run concurrently.  I cannot give an aggregate disposition.

26MS DIPIETRANTONIO:  No, Your Honour.  My instructor has just reminded me of the licence provisions.

27HER HONOUR:  Yes.  In relation to Charge 1, I take it that your client hasn't had his licence - - -

28MR PAULL:  No, Your Honour, he was in the process of going for his learner's.

29HER HONOUR:  All right.  Well, I will disqualify him for obtaining a licence for six months.  That means you can still get your learners, but you cannot get your actual driver's licence for another six months.  All right, Cory?  You understand that?  Thank you. 

30We will just get you to sign that, thanks, Cory.  Yes, thank you.  Good luck with that, Cory.  I thank counsel for their assistance, and your assistance too, Mr Gardiner.  That report made everything much simpler.  We will adjourn to 10.30 tomorrow.  Thank you very much.

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