Director of Public Prosecutions v Glasby

[2016] VCC 2091

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01869

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH GLASBY

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July, 8 November & 16 December 2016
DATE OF SENTENCE:	16 December 2016
CASE MAY BE CITED AS:	DPP v Glasby
MEDIUM NEUTRAL CITATION:	[2016] VCC 2091

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. L. Burnett	Office of Public Prosecutions
For the Accused	Ms. D. Lamovie	Victoria Legal Aid

HER HONOUR:

1Kenneth Glasby, you have pleaded guilty to Charge 1, attempted armed robbery that occurred on 13 April 2014 at Geoff and Lucy's Milk Bar situated at 81 Dundas Street, Preston, and an uplifted summary charge, Charge 11, unlicensed driving. 

2The maximum penalty for attempted armed robbery is 20 years' imprisonment, and for unlicensed driving 25 penalty units or imprisonment for not more than three months and licence cancellation is discretionary. 

3You also admitted your extensive prior criminal history.  That history spans a period from 20 January 1994 to 11 July 2012.  There are some 38 court appearances and you have got multiple convictions for dishonesty offending, driving offending, unlawful assaults, aggravated burglary, criminal damage, breach of suspended sentence and other offending. 

4The circumstances of this offending are as follows:  The attempted armed robbery occurred on Sunday 13 April 2014.  It involved you attending the Geoff and Lucy's Milk Bar in Preston.  You parked a vehicle in a small laneway, nearby.  The milk bar was approximately 250 metres from your mother's home where you were then living.  You entered the milk bar wearing a balaclava and a cap and dark sunglasses.  You were carrying a machete and a cup. 

5The proprietor of the milk bar, Geoff Teale, was upstairs in the residence attached to the milk bar.  He came downstairs when he heard the front door buzzer.  He then saw you standing at the front counter and noted that you were oddly dressed.  You demanded that he put moneys into your cup.  You tapped the front counter area with the machete two to three times.

6Initially he did not understand what was occurring and replied, "What?"  You then brandished the machete and said to him, "That's why?"  You again demanded that he put money in the cup.

7He turned and ran upstairs to call 000, and those facts constitute Charge 1, the attempted armed robbery.

8You then left the milk bar and ran down Dundas Street and you were seen removing the balaclava and the sunglasses.  You threw the machete, balaclava and glasses into a front yard and continued running.  You used a remote control to unlock the vehicle and drove away.

9You were a disqualified driver at the time. 

10On 11 July 2012, at Heidelberg Magistrates' Court, you had been disqualified for a period of 18 months and you have not had your licence reinstated, and the fact that you were driving on that occasion constitutes the facts of summary charge 11, unlicensed driving.

11Police arrested you on 16 April 2014 in the afternoon.  You denied involvement with the offending when you were formally interviewed.

12On 27 January 2015, forensic analysis of the machete and beanie revealed that there was an extremely strong support for the hypothesis that you were a contributor to the DNA detected on those items.

13You were re-interviewed by police on 27 March 2015 and made a no-comment record of interview in relation to the allegations.

14You have been on remand since 5 November 2015.  There is pre-sentence detention of 407 days.  You underwent sentence in respect to other sentences and also you served the unexpired portion of a parole order.

15Your matter resolved after a contested committal hearing, and at the initial directions hearing in the County Court you were arraigned and then the plea proceeded. 

16The matter was adjourned a number of times to enable an assessment as to your eligibility for Disability Services and also a Justice Plan. 

17I have taken into account the effect of the offending that was set out in the victim impact statement declared by Mr Teale on 3 May 2016.  He said he was in a state of shock and disbelief because this sort of violence is not a normal, every-day occurrence.  At first he felt confused, but then when you lifted up the machete he thought that it was an armed robbery and he became worried for his wife and children's safety.  They were upstairs in the residence.  He felt scared and was shaking and found it hard to think and speak, but he was able to call 000.  He had a very sleepless night following the incident, because he could not stop thinking about the machete.  He has now changed the way he runs his business.  He is much more cautious and careful before going downstairs, and he has had to learn to deal with customers in a very different way.

18Mr Glasby, Ms Lamovie on your behalf, conceded that the offending was serious, and acknowledged some of the aggravating features.  There was a degree of pre-planning.  You had armed yourself with the machete and the balaclava.  You wore the balaclava to seek to disguise your identity. 

19Fortunately, this episode was a short-lived one, and there was no actual violence inflicted on the victim. 

20I noted you have a relevant prior conviction for unlicensed driving.

21In sentencing you, there is a need to emphasise general deterrence, and specific deterrence is important.  However, given your personal particulars, that will be moderated to a degree.  You had been drinking before the offending, and you have no recollection of these events and state that you needed the money to pay back your brother-in-law moneys that you owed him for the purchase of a car.  Whilst giving some explanation for your offending, it in no way excuses your offending.

22I note that you were 36 at the time of the offending, but now 40.  By your plea you now accept full responsibility for your actions, and not withstanding that it was entered after a full committal hearing, I still consider there is real utility in the plea.  You spared all the witnesses the further trauma of coming to court on the trial and giving evidence and you saved the State the expense of a trial, and you thereby facilitated justice.  Your sentence will be discounted accordingly. 

23I note that you were not charged until 7 April 2015 because of the delay associated with the forensic investigations. 

24I do accept in the circumstances, the plea of guilty is evidence of some remorse.

25I have noted that at the time of the offending you had been released on parole and you had been on parole for some three or four months.  You have now served all the time owed and I have also noted that you were sentenced at Heidelberg Magistrates' Court on 28 July 2014 to a 15 month aggregate sentence with a non-parole period of 10 months which you have served in full. 

26Those subsequent offences related to unlicensed driving, committing an indictable offence whilst on bail, possession of cannabis, burglary/theft, theft of a motor vehicle.

27You received a further sentence on 3 September 2014 at Heidelberg Magistrates' Court with respect to unlicensed driving, where you were convicted and sentenced for one month, concurrent with the sentence imposed on 28 July 2014.  Given that this offending was committed whilst you were on parole, that is an aggravating feature. 

28Ms Lamovie made a plea on your behalf.  She provided the context to the offending and I have already referred to that.  I note you have a history of being incarcerated in prison throughout your adult years.  You have been in gaol continuously since 6 July 2015 and I have had regard to the principle of totality.

29I accept her submission that you have a very limited history of confrontational violent offences.

30I have taken into account the impact of your very disadvantaged and dysfunctional upbringing. 

31You are a person who was a Ward of the State at age 11.  You are the youngest of five children.  You did not know your father and lived with your mother until you were 10. 

32You have had a very difficult life in and out of gaol since.  You have a history of living in many foster homes and homelessness.  You have a history of alcohol and drug abuse commencing when you were very young, alcohol at age 10 and heroin from age 16. 

33You are currently on a Methadone maintenance program.  You have also used methyl-amphetamines on and off since you were about 34, and you were a daily cannabis user.

34In terms of your medical health, you suffer from Hepatitis C.  You have high cholesterol that is maintained with medication.  You are prescribed Prozac and anti-depressants and in the past you have been diagnosed with depression and anxiety and an addiction to methyl-amphetamine. 

35You have only limited contact with your mother but since the fresh offences occurred, you have lost contact with her.  You doubt that you will be able to return to live with her at any stage in the immediate future.  You have no significant relationships currently.  There is a 19 year old son with whom you have no contact.

36You have little by way of formal education.  You left school aged 13.  You have only had very limited periods of employment, sanding doors and putting furniture together. 

37During your most recent release, you were on the Disability Support Pension. 

38In prison you have completed short courses, and you are currently employed cleaning and serving meals in your prison unit. 

39It is apparent that within the strict structured environment of the gaol you are very settled, and there is a real risk that you have become institutionalised. 

40Since this plea hearing started there has been a lot of information obtained about you, and the report of Jane Lofthouse, Neuro-Psychologist, dated 4 July 2016, confirms her results, following testing, that you have a moderate level of intellectual impairment that is long-standing. As a consequence of her recommendations you were assessed as to your eligibility for Disability Services and there is now a statement of intellectual disability under the Disability Act 2006 dated 14 October 2016 which means that you are now eligible for services under the Disability Act 2006. 

41I note whilst in prison you have taken some steps to address your offending behaviour.  Whilst serving a previous sentence at Fulham Prison, you completed drug and alcohol courses.  You now state you are motivated to continue working on your substance dependence issues.  You have had some limited involvement with Odyssey House in the past and you had some alcohol and drug treatment whilst living in transitional property in the past. 

42I have had regard to the other material that has now been received by the court, in particular the Pre-sentence Report and the Justice Plan, and the recommendations that have been made.  

43Overall, I have formed the view that time spent in custody to date to be followed by a Community Correction Order that is properly structured to address your underlying offending behaviours is the most appropriate punishment. In sentencing you, it is important that the court imposes just punishment and on behalf of the community, formally denounces your behaviour.

44What you did on that occasion, how you approached the milk bar and frightened the proprietor of the milk bar in the manner in which you did, is just not acceptable, and for the future, you ought not engage in any such violent offending. 

45You have indicated your willingness to undertake a Community Correction Order in the manner that has been proposed and discussed, and in all the circumstances, I consider that this is a real opportunity for you to be released back into the community with the best supports that you have ever had, following release from prison, so that it does auger well for your future. 

46I think you do have good rehabilitation prospects, and I have been very impressed with the efforts made by Ms Tenille Rixon from Department of Health and Human Services in engaging with you, and I have adopted all her recommendations as set out in her Justice Plan which has been provided to the court and is dated 16 December 2016.

47It is important, Mr Glasby, that you continue to develop your relationship with Ms Rixon, and if you establish a good rapport with her, she will ensure that you are properly supported in the community, which will then help you for the future.

48ACCUSED:  Yep.

49HER HONOUR:  Okay.  So it is important that you follow through with your words now.  You have indicated through your willingness and cooperativeness with everyone in this process that you can do that, so it will be good to see if we can assist you to break the cycle, that is, the cycle of offending, going back into gaol and being released and offending again. 

50ACCUSED:  Yeah, I hope so too.

51HER HONOUR:  All right, the formal orders of the court in respect to the attempted robbery charge and also the related summary charge of unlicensed driving, you will be convicted and sentenced to 408 days imprisonment which is an aggregate sentence to be followed by a Community Correction Order, the period of which is for two years, commencing from today's date, and you must attend Reservoir Community Correctional Services within two clear working days, so early next week you will have to make an appointment and that is at Ground Floor, 909 High Street, Reservoir.  You have had the mandatory terms applying to the Community Correction Orders explained to you in the past.  Is there a problem?

52MS BURNETT:  No, Your Honour.

53HER HONOUR:  So I will just repeat those.  You cannot commit another offence within two years, that is punishable by imprisonment, and that includes even things like theft from a shop.

54ACCUSED:  Yeah, course.

55HER HONOUR:  And that you have got to comply with all your reporting requirements.  You have got to report to and receive visits from a Community Correction Officer.  You have to notify them of any change of address or job.  You cannot leave Victoria without permission and you must obey all lawful instructions from and directions of the Community Correction Officer, and it has also got the special conditions that you must undergo assessment and treatment including testing for drug and alcohol abuse, undergo any mental health assessments that is deemed necessary, and also participate in any programs or courses that address factors relating to your offending, as directed by the Regional Manager, and that you must participate in the services specified in the Justice Plan for that two years. 

56The residence requirement will be that you reside at 10 River Drive, Bundoora, or any other residence as directed by the authorised officer of the Department of Health and Human Services for that two years.  So you understand all that?

57ACCUSED:  Yes, I do.

58HER HONOUR:  Okay, good.  Finally, the only other order is the disposal order.  I make the disposal order sought. 

59So I think that covers everything.

60MS BURNETT:  Your Honour, just in terms of the PSD.

61HER HONOUR:  Yes.

62MS BURNETT:  It was 407 up to yesterday.  I am not sure if Your Honour's also included today's date.

63HER HONOUR:  The declaration of pre-sentence detention of 407 days will be made, so the intention is that he be released immediately. 

64MS BURNETT:  Yes, thank you Your Honour.

65HER HONOUR:  Yes.  So we are just preparing the necessary order and the Community Correction Order which I will get you to sign.

66I do not propose to make any order against the licence given the fact that Mr Glasby's been so long in custody in respect to all the matters, I do not think it would assist his rehabilitation to inhibit him from making the necessary steps to obtain a proper licence so that he can drive legitimately. 

67MS BURNETT:  Your Honour, just in terms of a s.6AAA declaration.  Is Your Honour minded to give one in the matter?

68HER HONOUR:  Do I need to?

69MS BURNETT:  It's discretionary, Your Honour.

70HER HONOUR:  Yes, I do not propose to.

71MS BURNETT:  Thank you Your Honour.

72HER HONOUR:  I always find it difficult when a Community Correction Order is involved.  Yes, I think it isn't required, it is not mandated.

73MS BURNETT:  No, that's right, Your Honour.

74HER HONOUR:  Yes. 

75MS BURNETT:  Thank you Your Honour.

76HER HONOUR:  Okay.  Can you go with Ms Lamovie and ask for Mr Glasby to sign.  All right, I have not provided for Judicial Monitoring.  Considering the circumstances, that there is going to be multiple people involved in the management of Mr Glasby in the community, and in the event that he breaches it will be brought before me, given proper attention, so I do not want to interfere with the therapeutic relationships.  I think it is best that he try and build those.

77MS LAMOVIE:  Yes, Your Honour.

78HER HONOUR:  It is not necessary in the circumstances where we have competent people monitoring him, but I will ask, in the event, that there is non-compliance that I be informed immediately.  That I am giving this opportunity to Ms Glasby, but I do not want any delays.  If there are any difficulties, let me know.

79MS LAMOVIE:  Yes, Your Honour.

80HER HONOUR:  And I do really appreciate the efforts that have been made in respect to this particular case.  It has been very illuminating just seeing what can be done when appropriate resources are fashioned to try and support somebody like Mr Glasby who has had a very difficult life.

81

He is institutionalised, but this is the best opportunity he has now of

re-integrating into the community with a proper transitional program, so thank you Ms Rixon for all your efforts.  I really appreciate it.  I think it has been very good, and I really appreciate all the efforts that have been made to date. 

82So, Mr Glasby, I think you can also thank your counsel, Ms Lamovie, she has made a lot of effort on your behalf, and it really has made the difference, so I  hope you find that life is better for you on this occasion when you are released from prison.

83ACCUSED:  Yep, I do too.

84HER HONOUR:  But it really is up to you.  Okay?  So we can all do our jobs, but at the end of the day, it is a matter for you.

85ACCUSED:  Okay.

86HER HONOUR:  Okay. 

87ACCUSED:  Thank you.

88HER HONOUR:  All right.  We can adjourn.

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