Director of Public Prosecutions v Gillie
[2019] VCC 1076
•12 July 2019
3
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00917
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN MICHAEL GILLIE |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2019 | |
DATE OF SENTENCE: | 12 July 2019 | |
CASE MAY BE CITED AS: | DPP v Gillie | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1076 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: One charge of causing injury recklessly – one charge of causing injury intentionally – armed robbery – theft of a motor vehicle – possession of a drug of dependence – offender aged 19 years 3 months at time of offending but 24 years and 5 months at date of sentence – delay attributable to offender – finding that offender had not used delay to rehabilitate himself from drug abuse which was a substantial cause of the offending – no prior convictions at time of offending but subsequent offending which impacts upon prospects of rehabilitation – very late pleas of guilty – no remorse – total effective sentence 20 months’ imprisonment with non-parole period of 10 months (86 days pre‑sentence detention on Charges 1 to 4 – convicted and discharged on Charge 5, possession of a drug of dependence)
Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Confiscation Act 1997
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plummer | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms A Hancock | May Monagle Lawyers |
HER HONOUR:
1 Benjamin Gillie, you have pleaded guilty to one charge of recklessly causing injury, which carries a maximum penalty of 5 years’ imprisonment, one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment, one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, one charge of theft, which carries a maximum penalty of 10 years’ imprisonment and one charge of possessing a drug of dependence, namely cannabis L in a small quantity not for a purpose related to trafficking, which carries a maximum penalty of 5 penalty units.
2 The circumstances of your offending are detailed in the summary of prosecution opening, Exhibit “A”. The offending on Charge 1, recklessly causing injury, was committed on 8 June 2014. Your offending on the other four charges was committed three days later on 11 June 2014.
3 The victim of your offending was a young man, aged 18 years, who had come from interstate to meet a friend of yours, Charmaine Collins. He had met Collins on Facebook a couple of weeks earlier and believed that he had developed an on-line relationship with her. He agreed with her to drive his car from interstate to visit her in Melton and stay over the weekend at a house where she lived with her mother. He arrived on Friday, 6 June 2014. Apparently, Collins’ mother was not present at the house. The victim and Collins spent time together on the evening of Friday, 6 June and Saturday, 7 June and, on 8 June, he took her shopping and bought her a number of gifts.
4 At about 7.00pm on 8 June, Collins took the victim to a park in Melton where you and your girlfriend, Nicole Monden, and another male, had a barbecue. After the barbecue, the victim was putting rubbish in the bin when you suddenly approached him and punched him to the face, causing him to fall to the ground. Then, you kicked him to his arm and walked away. The victim suffered swelling to the left side of his face and a laceration to his lip. This is the conduct relating to Charge 1, recklessly causing injury. Two photographs depicting those injuries were tendered as part of Exhibit “B”.
5 Following that incident, Collins took the victim back to her mother’s house and, after an argument, she took off in his car and did not return with it until 11 June. Meanwhile, the victim had reported the incident to police.
6 When Collins returned, she told the victim that they were “going for a drive.” She took him to a house where a friend of yours, Thorne Korybutiac, was present, along with you and Monden. Collins drove the victim’s car to a Commonwealth Bank in Melton where she demanded that he withdraw money. He withdrew $435, which was all the money in his account. He put $40 down his sleeve and hid the rest in his pants. Once in the car, Collins asked for the $40, which you used to buy petrol and cigarettes. Later that day, Collins again took the victim back to the Commonwealth Bank, demanding that he withdraw more money. When he got back into the car, Collins told him to give the money to Monden and he gave her $250.
7 You all then went to Korybutiac’s house where you and Korybutiac collected some cannabis and a bong. Collins then drove the victim’s car to MacPherson Park Reserve where you, Monden, Korybutiac and Collins all began smoking cannabis. Collins was claiming that the victim had “cheated” on her by contacting other girls on Facebook and Monden told you that the victim had lied to her about this.
8 You then began behaving aggressively towards the victim. You punched him three times on the cheek and pulled him by the hair to get him out of the car. You then held his head down, while you punched and kicked his head. He covered his face. You told him to pull his hands away from his face and punched him to the head. You then told Korybutiac to punch the victim and Korybutiac punched him in the jaw. You then told the victim to let Collins hit him and Collins slapped him across the face. You then hit him across the shin with a shopping trolley handle. The acts of assault to which I have just referred comprise the rolled up charge, Charge 2, intentionally causing injury.
9 The victim sustained soreness to his cheeks and jaw and a welt to his leg. There was a mark on his right lower leg which was 6 centimetres long and 1 centimetre wide, he had tenderness and redness to the right ribs, bruising below both eyes, inflammation and redness to the left eye, swelling and redness to the cheekbone and bruising inside the left gum, the lips and forehead. These injuries were noted on examination by a doctor on 13 June 2014. Seven photographs depicting them were tendered as part of Exhibit “B”.
10 The victim lay on the ground on his side and covered his head. You threatened him with the shopping trolley handle and told him to give you everything he had. The victim got the rest of his money ($175) from his pants and gave it to you. You counted it out and gave your girlfriend all the money, except for $20 which you gave to the victim, magnanimously claiming “I won’t leave you with nothing”. These are the circumstances in support of Charge 3, armed robbery.
11 Either you or Collins then announced that the victim’s car was going to be driven to take Korybutiac to a train station and you, Monden, Collins and Korybutiac then left the victim at MacPherson Park Reserve. One of you told him that, if he moved from that spot, they would hunt him down. Forty minutes later, you Monden and Collins returned and threatened the victim that he had “better not go to the cops about this, if you do you won’t be able to hide or run.” You hit and kicked him and tried to strike him on the legs with the trolley handle, but the victim ran away. He lost his shoes but kept running and you pursued him whilst holding the trolley handle and yelled, “I’ll get my gun” and “You’re a dead man.”
12 You told Collins and Monden to get the victim’s car. The victim managed to flag down a car in order to get away. As he was about to get in the car, Collins drove past, with you and Monden in the car. Collins was driving at high speed and narrowly missed the victim and then drove off. You were complicit in the use of the victim’s vehicle from the time Collins drove it from MacPherson Park Reserve. This is the conduct comprising Charge 4, theft of a motor vehicle.
13 Later that day, police intercepted the victim’s car with you, Monden and Collins inside. You were searched and a bag containing cannabis was found in your jeans pocket. As previously mentioned, this was a small quantity of cannabis, not for the purposes of trafficking. This is the basis of Charge 5, possession of a drug of dependence.
14 In a record of interview conducted on 11 June 2014, you admitted having punched the victim to the face and stated that the victim was really scared of you. You admitted that you, Collins and Korybutiac had driven off without the victim and that, on returning, you had punched the victim in the jaw and told him not to tell the coppers that you punched him. You denied punching him three times to the right side of his face or pulling him by the hair or punching and kicking him while he was on the ground and maintained that, when you went back to get him at MacPherson Park Reserve, he had bolted and you had no idea why. You conceded that the victim was scared enough to leave his car there and bolt, but denied that you had demanded money from him or that you punched him in the face in the earlier incident after the barbecue on 8 June 2014. You admitted that the cannabis was yours. You stated that you felt like “a fucking cunt” and felt that you had stolen his car.
15 You are presently aged 24 years, having been born on 20 February 1995. Following your arrest and interview on 11 June 2014, you were bailed but, failed to appear in the Magistrates’ Court to answer the charges on 16 September and 20 October 2014 and then, again, at a committal mention for those charges on 30 September 2015. A warrant for your arrest remained outstanding for almost three years. You were ultimately arrested and re-bailed for a filing hearing on 2 February 2018. The matter was twice adjourned and, ultimately, on 2 May 2018, the matter proceeded to trial in the County Court by way of straight hand-up brief, You failed to appear at a final directions hearing in the County Court on 4 April 2019 and were subsequently arrested on 17 April 2019. You have remained in custody to the present time. Your trial was listed to commence on 3 June 2019 and, on that day, the matter resolved into a plea to the charges for which I must sentence you. Seven summary charges relating to unlawful assault and assault by kicking were marked as withdrawn.
16 In a plea on your behalf by Ms Hancock, the Court was told that, at the time of these offences, you were aged 19 years and three months and had no prior findings of guilt or convictions. Subsequently, you appeared in the Children’s Court on 26 March 2018 on charges of theft and burglary committed in January 2013, that is, prior to the offending for which I must sentence you. Without conviction you were given a 12 month good behaviour bond. On 27 March 2018, you appeared in the Magistrates’ Court on charges of stating a false name, using cannabis, failing to answer bail, breaching bail, possessing a prohibited weapon, affray, committing an offence whilst on bail, unlawful assault and assault with a weapon. These offences were committed on 25 August 2014, less than 3 months after being granted bail for the offences for which I must sentence you. You were convicted and sentenced to 90 days’ imprisonment (of which 82 days was reckoned as already served) together with a Community Correction Order of 12 months. In the time between committing the offences in August 2014 and being sentenced on 27 March 2018, you breached your bail conditions on multiple occasions. Also, in October 2017, you committed further offences of using cannabis and giving a false name to police. Then, in January 2018, you committed two offences of unlawful assault. The October 2017 and January 2018 offences were dealt with in the Magistrates’ Court on 27 March 2018 and were part of the offending for which a combination sentence of a term of imprisonment (90 days) and a Community Correction Order was given. You have been charged with contravening the Community Correction Order by not complying with conditions. That charge is listed for hearing in the Magistrates’ Court on 16 July 2019.
17 At the plea hearing a report dated 13 June 2019 from Melton Community Correctional Services in relation to proceedings for contravention of the Community Correction Order was tendered as Exhibit “3”. The author stated that your attendance for supervision appointments had been satisfactory, having attended all but two scheduled appointments. However, the order expired on 2 April 2019 without you having completed community work or drug treatment conditions. You failed on multiple occasions to attend drug and rehabilitation programs and urinalysis on two occasions showed that you were using drugs. The report stated that, on 27 February 2019, the result was positive for high levels of methamphetamine and amphetamine and cannabis and that on 7 May 2019, the result was positive for high levels of cannabis. It is possible that the latter date should be 7 March 2019 as, by 7 May 2019 you had been remanded in custody. Nevertheless, you had reported consistent daily cannabis use throughout the period of the Community Correction Order, together with sporadic methamphetamine use. You attended only nine out of 35 scheduled community work days and, of the nine, only two were full days. The author of the report considered that you were at high risk of general re-offending and, overall, your compliance with the order was considered unsatisfactory.
18 Ms Hancock told the Court that you are the second eldest of five children and were raised by your parents in Melton until the age of nine, when your family moved to Port Hedland in Western Australia. You remained there until the age of 17 and then returned to Melton. Apparently your father was often absent from the home due to his work and then your parents’ marriage broke down due to your father commencing a relationship with another woman with whom he has remained. In a letter the Court, your mother stated that your father also had drug and gambling issues.[1] Ms Hancock stated that the breakup of your parents’ marriage had a significant adverse effect upon you emotionally. You completed school to Year 11, but apparently had not passed Year 10 and did not pass Year 11 either.
[1]Part of Exhibit “4”
19 You have a limited work history, having performed some work for your parents at Port Hedland Seafarers Centre while you were still at school and, thereafter, a brief period as an air conditioning apprentice. You returned to Victoria in 2012 and did a couple of weeks working for a plasterer. However, it would seem that drug abuse has been a significant problem for you for a long time. You commenced using cannabis at age 15 and this had escalated to daily use by the time you were seventeen. You first used ice when you were 16 years of age and began using it heavily upon your return to Melton from Port Hedland when you were aged seventeen. You were out of work for a long time and in a relationship with Monden, who also used ice. Not long prior to the subject offending, you had obtained work at a timber mill, but lost that job after having an argument with your boss whilst under the influence of ice and, after the loss of that job, your drug use escalated.
20 A report was tendered from Ms Gina Cidoni, psychologist, dated 28 June 2019 (Exhibit “2”). She noted that your intellectual and memory function ranged between average and low-average. She stated that there were no obvious signs of cerebral dysfunction. She took a history that you had been sexually abused by a cousin between the ages of seven and nine years, although this was never reported. Ms Cidoni stated that you had symptoms of Post-Traumatic Stress Disorder, lacked energy and confidence, suffered anxiety and tended to ruminate, had longstanding impulse control problems, and had maladaptive coping mechanisms by using drugs. She took a history that this offending occurred in the context of heavy use of methamphetamine. She claimed that you acknowledged the wrongfulness of your actions and were upset with yourself for assaulting the victim. She noted that you are anxious and scared in custody and that other prisoners give you a hard time. She took a history that you had ceased methamphetamine use in January 2019 and your intention is to stay away from all drugs. However, I here note that this portion of Ms Cidoni’s report is at odds with the report of urinalysis conducted on 27 February 2019, which showed positive results for high levels of methamphetamine, amphetamine and cannabis.
21 Ms Cidoni described you as “a reduced young man suffering PTSD and comorbid depressed mood, and his prison experience is harsh as a result. The concern is this may further deteriorate his mental health.”
22 Mr Gillie, your offending is of an appalling nature on an innocent young man, who appears to have been duped into travelling interstate by the duplicitous Collins. Your offending is very serious for a variety of reasons. It was completely irrational and bullying, and terrifying for the victim, who had no idea that he had encountered a group of young people whose behaviour lacked any morality or sense of empathy. You assaulted your innocent victim and encouraged your unsavoury companions to do likewise. You committed an armed robbery by threatening him with a shopping trolley handle in the context of having already repeatedly kicked him, punched him, pulled his hair and struck him with that handle. When he fled in terror, leaving his shoes, other possessions and car behind, you, Monden and Collins got into his car to pursue him, when you well knew that Ms Collins had no authority to drive it in the circumstances. The offending is cowardly because there were three or four of you against your lone, vulnerable victim. It was truly callous and antisocial conduct. Unfortunately, people like you, who have used ice, seem to behave in an inhuman fashion when affected by it.
23 Although you had no prior court appearances, it would appear that you are a hot head who has exhibited something of a anger problem. Ms Cidoni’s report notes that, while living at Port Hedland, you broke your right hand punching a door in frustration, broke your right elbow swinging on a chair at school and broke your big toe and nose after being punched at a party when you were 15 years old. Further, only the month before the offending for which I must sentence you, you had committed an assault with a weapon and criminal damage for which you were ultimately sentenced on 27 March 2018. The victim in that case is your own sister with whom you had had an argument. You were on the phone to your girlfriend and hit the family phone down a number of times, causing it to break, and punched a hole in the phone base. You then threatened to punch your sister and threw a glass at her, which hit her on the knee. You pushed her and threw her on her stomach. As you left the room, you punched a hole in the wall and also grabbed your sister by the hair. Subsequent to that offending, on 25 August 2014, you committed an affray and possessed a prohibited weapon (a flick knife) and both of these offences were committed whilst you were on bail. This involved a fight between yourself and two other males, one of whom had a flick knife, which fell to the ground during the fight and you picked it up and put in your pocket. The three of you were involved in punching and fighting and an affray.
24 You are someone who seems to have shown scant regard for the law and on many occasions have failed to appear and breached bail conditions. You have been leading a lawless, drug-abusing, wasteful life for quite some years. Even though the offences for which I must sentence you are now five years old, you have not used the period that has elapsed to get your life in order. You were given the benefit of a Community Correction Order in the Magistrates’ Court last year and I have already commented upon your unsatisfactory performance in terms of addressing your drug use or undertaking community work.
25 Ms Hancock, in a plea on your behalf, urged the Court to give emphasis to your rehabilitation, given that you were only 19 years of age at the time of commission of these offences and had not previously appeared before a court. She stated that you had suffered some post-traumatic stress symptoms relating to having been sexually abused as a child on a number of occasions by a cousin, had suffered emotional distress over your father’s departure from the family unit and seeing your mother struggle as a single parent, particularly given that you have two very much younger siblings, who are twins, who suffer from Autism and have significant needs. She stated that this offending, together with prior and subsequent offences, committed relatively close in time to it, occurred during a period of heavy use of drugs by you and while you were in a relationship with Monden, who was also a drug user. She stated that shortly prior to this offending, you had commenced employment with a timber mill, which you were enjoying, but after a weekend of heavy drug use, you ended up having an argument with your boss and “your fuse was shorter than it should have been”. She stated that the loss of this job resulted in you spiralling down into heavier drug use in the companionship of Monden, from whom you subsequently separated.
26 It was put on your behalf that you have a number of “protective factors” which should give the Court some reassurance that you have reasonably good prospects of rehabilitation. These are as follows:
·You pleaded guilty to the offences and it was submitted you are remorseful for what you have done.
·You have a new partner, Ms Brittany Warne, aged 21 years, who is not a drug user and she and her mother, Ms Michelle Warne, were in Court to support you. Ms Warne has been visiting you in custody very regularly and she and her mother are prepared to be a support to you and to give you accommodation upon your release.
·Your own mother continues to be supportive of you and was present in Court. As mentioned, she also wrote a letter to the Court on your behalf. However, you acknowledge that she has a heavy load caring for your younger twin Autistic siblings. She visits you in custody and is in regular contact with you.
·With the exception of multiple bail offences, there was a gap of some three years in your offending between 2014 and 2017, and there has been no further offending by you since January 2018 (although, obviously, you spent 90 days in custody after that and a further 87 days in custody this year up until the present time).
·Since being remanded in custody in April 2019, you have abstained from taking illicit drugs, are feeling much healthier and more clearheaded, and are committed to maintaining a drug-free lifestyle.
·You are the father of a 5-year-old child, Flynn, who was born on 16 August 2013 of a casual short-lived relationship which you had with his mother. Flynn and his mother have largely lived in Queensland, however, Ms Hancock stated that, periodically, they would come to Melbourne and stay with your mother so that you were able to see Flynn. For a period of approximately 12 months, up until February 2019, Flynn and his mother returned to Melbourne and you were able to see him once per week and stay overnight with him. However, in February, Flynn’s mother returned to Queensland with him. It appears that she had some form of “mental breakdown” and, in March 2019, Flynn was flown, on his own, back to Melbourne, and your mother has taken over his care. It is put on your behalf that you are anxious to be a good father to Flynn and your current girlfriend, Ms Warne, brings him with her to see you in prison a couple of times per week. Ms Hancock urged the Court to regard your wish to be a proper father to Flynn as another reason in support of your prospects of rehabilitation.
·The Court was provided with a reference from Mr Adam Kovacevic, dated 1 July 2019. He is aged approximately 29 years and runs his own plastering business. He knows you, as his mother is the employer of the mother of your current girlfriend. He noted that he had met you because you were doing some volunteer work at a supported residential service in Melbourne of which his mother is the owner/manager. He had offered you employment with his plastering business when he learned that you were not working, but states that you declined his offer because of your forthcoming court case and did not want to let him down if you could not attend. However, he stated that he is willing to offer you employment. Ms Hancock stated that this offer of employment, together with secure accommodation upon your release from custody, were further matters in support of your prospects of rehabilitation.
·While in custody, you have found the environment very challenging, and people have stood over you, necessitating you having been moved from one correctional facility to another on four occasions during your period of remand. Ms Hancock noted that personality testing by Ms Cidoni indicated high situational distress with evidence of depressed mood, as well as anxiety, and signs of maladaptive coping with Post-Traumatic Stress Disorder. Ms Cidoni considered that you required treatment for your drug problem and professional counselling for your trauma, and expressed concern that the combination of your Post-Traumatic Stress Disorder, depressed mood and prison experience may cause further deterioration to your mental health. Thus, Ms Hancock relied on Principles 5 and 6 in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 concerning your mental health, in that imprisonment is likely to be more burdensome for you than for someone without your problems, and carries a risk that your mental-health will deteriorate.
·Notwithstanding a disruptive and stressful time in custody, Ms Hancock stated that you had undertaken a remand release assistance program and an occupational health and safety course. In addition, you are currently working in a factory at Port Phillip Prison making bolts. She stated that these are positive matters that bode well for your rehabilitation.
·Tendered as Exhibit “4” were a number of references which variously describe you as being kind, generous and loving when you have not been using drugs. Mrs Kovacevic noted that you took the time to sit and chat with residents who suffer an intellectual or mental disability at her supported residential service when you attended there for Christmas Day lunch. After that, you attended on a Saturday and Sunday to help some of the residents put together a vegetable garden; a reference from your long-suffering mother stated that she saw you go from a beautiful, sweet and tender little boy into a traumatised, angry teenager. She noted that your father had drug and gambling addictions and his behaviour had an adverse effect on you and you were diagnosed with Post-Traumatic Stress Disorder in 2013 while staying briefly in Tasmania with your father, but you had not been very open to counselling. She acknowledged that your drug-taking behaviour was at its worse from 2011 to 2014, but stated that, since that time, you have been helpful in assisting her with caring for your younger siblings, the 8-year-old Autistic twins. She claims that your son, Flynn, “means the world to you”. She noted that he has some issues regarding delayed development and some physical problems with his hips, legs and mobility that have never been properly addressed. She states that you are very keen to take on the role of parenting him; your girlfriend’s mother, Michelle Warne, who has known you since late November or early December 2018, states that she finds you to be a caring and considerate person. She has visited you in prison and states that, since dating her daughter, you have distanced yourself from anyone or anything that could be detrimental to your son’s well-being. Thus, your counsel submitted that your offending behaviour is not indicative of your true nature.
27 In all of the circumstances, given your relative youth, your pleas of guilty, your lack of prior convictions and the fact that you have only ever had one sentence which gave you the opportunity to complete a Community Correction Order to which you had complied in part, Ms Hancock urged that a combination sentence by way of imprisonment and a community correction order was an appropriate disposition for the offending. She submitted that a community correction order would give you an opportunity to build upon the rehabilitative steps which you have already taken.
28 In written submissions filed following the conclusion of the plea hearing, Ms Hancock also urged that the Court take into account the principle of parity. She noted that your co-accused, Korybutiac, had been sentenced in the Children’s Court on 11 September 2014 for the offences he committed on 11 June 2014. These were theft of the motor vehicle (committed earlier on during the day of 11 June 2014), theft of money withdrawn by the victim from his bank account, recklessly causing injury and armed robbery. Without conviction, he was placed on probation for 12 months. Ms Hancock noted that Korybutiac had previously appeared in the Children’s Court on 11 December 2012 on charges of burglary, theft, intentionally damaging property and attempted theft of a motor vehicle. Without conviction, he had been placed on a good behaviour bond. In contrast, she noted that you had not prior convictions before the offences for which I must sentence you.
29 Mr Gillie, you should be left in no doubt about the seriousness of your cowardly, brutal and dishonest offending. The victim made a Victim Impact Statement dated 28 June 2019, which was tendered as Exhibit “C”. He mentions a physical injury suffered by him, and the fact that his mouth was swollen for a further two weeks, making it difficult for him to eat food and brush his teeth, and how he was too ashamed to tell friends and family what had happened to him. In addition, he described the ongoing fear he suffered as he waited for his parents to drive from interstate to get him. He was too scared to even answer the door of the motel where he was staying, awaiting for their arrival, wondering if you and your associates would find him. Once he returned to live with his mother interstate, he no longer felt safe and started sleeping in because he was too worried about going to work, and eventually lost his job. His mother and stepfather had to change all of the locks in the house while was staying with them because they and he felt threatened for their safety. He said that, ultimately, he could no longer cope with living there because he was worried that you and your associates still had his address because you had the wallet containing his driver’s licence. Hence, he moved to another state to live with his father. He was distressed to say goodbye to his mother and other family members, but believed he had to do it. He stated that, for about a year after the offending, he was closed off and shut down as a person, and found it extremely difficult to trust people, and he has been forever changed as a person and this would always be a negative part of his memories.
30 The adverse psychological experiences described by the victim are understandable consequences of your appalling offending. Indeed, the Court was told that Collins and Monden, who had been charged in relation to these matters and were to conduct a contested hearing in the Children’s Court, had their charges withdrawn by mid-2015 because the victim and his mother had indicated to police that the victim would find it too stressful to have to come back to Victoria to give evidence of the trauma which he had endured. As a consequence, Monden (who was aged 15 and 9 months at the time of offending) and Collins (who was aged 17 and 5 months at the time of offending) were extremely fortunate in having the charges withdrawn against them.
31 Although the law recognises that, generally speaking, comparable sentences should be imposed for comparable offending, it is not possible to do that in this case. You were by far the oldest of the group of offenders, aged 19 years and three months. You were approximately two years older than Korybutiac and Collins and 3 ½ years older than Monden. Collins appears to have engaged in despicable behaviour by luring the innocent victim to come interstate, but you are the one who was responsible for initiating violence. On 8 June 2014, the victim had just finished socialising with you at a barbeque when you, without any warning, gratuitously punched him with force sufficient to send him to the ground and then kicked his arm. Apparently, Korybutiac was not present on that day and faced no charge in relation to it. Then, on 11 June 2014, when Collins again brought the victim into your presence, you took full advantage of his vulnerability. Your counsel has described your concern about being stood over in prison and your property being taken from you. That is conduct which must be condemned. Perhaps this can give you some small inkling of what the victim was feeling. He was outnumbered and you behaved in an arrogant, brutal and menacing fashion. Not content with laying into him for no reason at all, yourself, you then humiliated him further by demanding that he submit to assaults from each of your three companions. I regard the charge of intentionally causing injury as a nasty example of this type of offence. Further, it is a rolled-up charge which comprises numerous discrete assaults involving pulling the victim’s hair as you dragged him from the car, punching him three times to his cheek, punching and kicking his head as the victim tried to protect it with his hands, directing the victim to allow the other three to assault him and then striking his leg using the handle of a shopping trolley. This is a far more serious charge than that of recklessly causing injury to which Korybutiac pleaded guilty for the punch he gave the victim at your direction.
32 You then followed up the serious assault by demanding all the money the victim had. This was done by threatening him with the shopping trolley handle, which you had already used against him as a weapon, as he lay on the ground on his side covering his head. Although Korybutiac pleaded guilty to armed robbery, his role was that of adding support to you by his presence. There is no doubt that you were the principle offender and commander-in-chief. Unlike yourself, Korybutiac left MacPherson Park Reserve and did not return. You returned with Monden and Collins. Collins hit and kicked the victim while you tried to strike his legs with the trolley handle and, as the victim fled, you chased him wielding the handle and yelling threats that you were going to get a gun and he was a dead man. You were also the one who told Collins and Monden to get into the car to chase the victim. You were complicit in the use of the victim’s car from the time Collins drove it from the reserve (albeit not complicit with her driving whereby she almost hit the victim with hit) and Korybutiac played no role in this even though he had pleaded guilty to theft of the car by reason of riding in it earlier in the day, as well as theft of some of the money which the victim had been compelled to withdraw from his bank account.
33 The fact of the matter is that Korybutiac was 17 years old and someone who came within the Children’s Court jurisdiction. He also pleaded guilty at an early stage. You were well beyond being eligible to be dealt with in the Children’s Court at age 19 years and three months and did not plead guilty until five years after the offending. Although, unlike Korybutiac, you had no prior court appearances before the commission of the subject offence, you had, in fact, committed charges of burglary and theft in January 2013. You were awaiting an appearance in the Children’s Court for these at the time you committed the offences for which I must sentence you. It is unclear to me whether you were on bail for those Children’s Court offences at the time you committed the subject offences. The victim had no live with the fact that you, as the most terrifying principal offender, had not been brought to justice in all that five year period. Then, he was put to the inconvenience and stress of having to travel to Melbourne from interstate in order to give evidence at your trial and you only pleaded guilty after the time appointed for your trial to commence. Although I take into account your youth at the time of the commission of the offences, I find no convincing evidence of remorse on your part. Whilst you may have been a person with no prior convictions at the time of the offending, the delay caused by yourself means that you can no longer rely upon being a person of good character. Had you used that five years to rehabilitate yourself, I could have taken that into account in your favour, but you have not done so.
34 The gravity of the overall offending must be reflected in the sentence which I impose for it. You behaved like an unmitigated thug. There can be no doubt about how much your victim was in fear of your unrestrained, irrational, abusive behaviour. After he fled from the scene and managed to flag down a car to help him get to safety, police attended the MacPherson Park Reserve. It is apparent that the victim was so concerned for his safety that he left behind a cap, sunglasses, a beanie and both of his shoes, as well, of course, as his car (of which you, Collins and Monden took full advantage).
35 Normally, in sentencing a young offender under the age of 21 years, rehabilitation is the predominant sentencing principle. You are no longer under 21 years of age. You turned 24 five months ago. You were never eligible to be dealt with in the Children’s Court, which operates in a totality different way from the adult courts and has a distinct regime of sentencing. Also, you are now too old to be considered for a Youth Justice Centre order. However, I most certainly take into account your youth and relative immaturity at the time of committing these offences as factors which should moderate the length of the sentences to be imposed.
36 Of course, you are not to be punished by me for other offences which you have committed in the meantime, however, the fact that you have not utilised the five years since you committed these serious offences to change your life and not use drugs, and not engage in criminal behaviour, is something which I must take into account in determining your prospects of rehabilitation. Although you have had some challenges in your life, you have been a law unto yourself, leading a feckless, wasteful life of drug abuse for many years. The references speak of you as being kind and gentle, but there is evidence before me of multiple occasions of you giving vent to anger and violence. The offending for which I must sentence you was substantially contributed to by you abusing drugs. The community is well and truly sick of the violent, dishonest and antisocial behaviour perpetrated on innocent members of the community by people like yourself. Hence, despite your youth at the time of offending, there is still a need to send a message to others that this type of offending will not be tolerated and will be appropriately punished.
37 I do not share the supreme optimism as to your prospects of rehabilitation articulated by those who have given references to the Court. Indeed, I note that the report from the Office of Corrections assesses you to be at high risk of general re-offending. You have been abusing cannabis and/or Ice since you were 15 or 16 years old. The fact of the matter is, that even while on a community correction order as recently as 27 February this year, analysis of your urine showed positive results for high levels of methamphetamine, and amphetamine and cannabis. That is less than 5 months ago. While it is to your credit that you have remained free of illicit drugs while remanded in custody, this has been for less than 3 months, namely, since 17 April 2019. In the context of years and years of drug abuse, this is a minute timeframe. Your addiction will remain with you and will be brought to the surface any time you give into the temptation to use illicit drugs. It will always be there and you cannot afford to touch illicit drugs. The cold hard fact is that you have barely begun your rehabilitation and it has really only begun because you have been in custody.
38 It has been put that your desire to be a good parent to your 5-year-old son is something in your favour. With a clear head in custody, this probably seems very desirable to you. However, there is little evidence that you have played a significant role in your son’s life other than when his mother brought him down to Melbourne. It is noteworthy that he was born in 2013 and your own mother describes, in her letter to the Court, that your behaviour was at its worst between 2011 and 2014. Moreover, although your child’s mother apparently brought the child to stay in Victoria during 2018, you spent some 90 days in custody in 2018 prior to commencing your Community Correction Order on 6 April 2018. I find it difficult to believe that you had the wherewithal to be attentive to your son’s needs when you were not even capable of having the insight to realise how much help you needed with your drug problem and failed to attend for treatment under that order, as well as showing no serious commitment to performing the unpaid community-work component of the order. You also showed a complete lack of responsibility by failing to appear at the final directions hearing at the County Court on 4 April 2019 and, hence, were arrested and remanded in custody on 17 April 2019. It seems to me that you have everyone else running around bringing your son out to prison to see you and you have created a very considerable load for your mother in caring for him, when she was already heavily burdened by having the care of two Autistic 8 year olds. Indeed, I note from Ms Cidoni’s report that you told her that prior to your remand you were staying with your girlfriend, Brittany, and her mother, in Melton. Thus, although you may have seen Flynn, it would appear that you were not assuming full-time care for him, as he was living with your mother. Also, given the report of urinalysis on 27 February 2019 showing high levels of methamphetamine and amphetamine and cannabis, it cannot be true that you ceased taking drugs after you commenced dating Brittany or, at least, in January 2019 as you told Ms Cidoni.
39 While it is a positive factor that you are no longer in a relationship with another drug addict, the fact is that, you only commenced dating your current partner, Brittany, in November or December of last year and, by 17 April 2019, you were in custody. While you may have known Brittany for several years, a three or four month relationship while you were at liberty is not necessarily the most solid foundation for a long-term relationship, particularly as you have been in custody and you are unlikely to be at liberty in the immediate future. Brittany is supporting you by regularly visiting you in prison, however, it sounds as though she, herself, is in need of support. She told the Court that she is 21 years old and not working due to serious injuries sustained in a car accident some years ago. Her mother may have the best will in the world to support you, but she has not known you as an out-of-control, menacing drug addict. However, I accept that the support of Brittany and her mother is a factor which should encourage your rehabilitation, as is the presence of your son who now lives in Victoria.
40 You are to be given credit for pleading guilty to these offences, although such pleas of guilty came at the latest possible opportunity, on the day that your trial was due to begin on 3 June 2019. I have expressed my reservations as to whether you are remorseful. You lied to police, denying that you had assaulted the victim to the extent alleged, albeit that you admitted that he would have been scared and that you felt like he had stolen his car. There is no evidence that you have any great insight into your offending. Indeed, as recently as 28 June 2019, when Ms Cidoni assessed you, although you acknowledged the wrongfulness of your actions, she stated, “[h]e acknowledged he should not have involved himself and he is upset with himself for assaulting the victim.”. Nowhere do I see any statements of concern for the victim or sorrow for the grief that you have caused him. Nevertheless, you are entitled to a discount for the utilitarian value of your pleas of guilty, which has saved the cost of a trial and ultimately did spare the victim the trauma of having to relive his ordeal at the mercy of the brutal behaviour of yourself and your companions.
41 It is to your credit that you have done courses while in custody and I do take into account your low mood and anxiety, and the difficulties that you have suffered because of these while in prison, and the possibility that your mental state may be worsened while in prison.
42 In my view, there is only one appropriate sentence to be imposed on Charges 1, 2, 3 and 4, and that is an immediate custodial sentence. I consider that disposition with a non-parole period is appropriate. You do not have a solid work history and, it seems to me, that you are going to need a great deal of support when you are released into the community in order to engage in drug rehabilitation and mental health treatment and other programs to manage your anger in order to be able to sustain employment and learn how to be a proper father to your son. Although I have reservations about your prospects of rehabilitation, I consider it important to impose a sentence that will not militate against what prospects there are, and for this reason, I have determined that a lower-than-usual non-parole period should be imposed. Ultimately, however, it will be up to the Parole Board as to if and when you receive parole.
43 On Charge 1, causing injury recklessly, you are convicted and sentenced to be imprisoned for 3 months.
44 On Charge 2, causing injury intentionally, you are convicted and sentenced to be imprisoned for 15 months.
45 On Charge 3, armed robbery, you are convicted and sentenced to be imprisoned for 12 months.
46 On Charge 4, theft of a motor vehicle, you are convicted and sentenced to be imprisoned for 6 months.
47 On Charge 5, possession of a drug of dependence, you are convicted and discharged.
48 The base sentence is that of 15 months imposed on Charge 2. I direct that 1 month of the sentence imposed on Charge 1, 3 months of the sentence imposed on Charge 3, and 1 month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 2 and upon each other. The total effective sentence is, thus, 20 months’ imprisonment. I direct that you serve a period of 10 months’ imprisonment before becoming eligible for parole. I declare a period of 86 days’ pre‑sentence detention to be time reckoned as already served under the sentences imposed this day.
49 Pursuant to s6AAA of the Sentencing Act I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 3 years with a non-parole period of 2 years.
50 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I believe this order is justified by reason of the seriousness of the circumstances of the offending and the fact that the order is not opposed.
51 Mr Gillie, this involves you having to insert a cotton bud into your mouth in order to take a sample of saliva from your cheek. You need to be aware that if you do not cooperate with the taking of such a sample, then police may use reasonable force to ensure that it is obtained.
52 On Charge 4, theft of a motor vehicle, I order that pursuant to s89(4) of the Sentencing Act 1991, that all licences or permits to drive be cancelled and you are disqualified from obtaining a further licence or permit for a period of 6 months from the date of your release from custody.
53 On Charge 5, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule (cannabis L) and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
- - -
0
1
0