Director of Public Prosecutions v Glasgow
[2023] VCC 695
•26 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-22-00704
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN GLASGOW |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 26 April 2023 | |
DATE OF SENTENCE: | 26 April 2023 | |
CASE MAY BE CITED AS: | DPP v Glasgow | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 695 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - guilty plea – armed robbery – possessing a prohibited weapon (tomahawk) – criminal history - 10 year gap in offending - money laundering –– effect of COVID on imprisonment
Legislation cited: Sentencing Act 1991 (Vic)
Cases cited:Bugmy v The Queen (2013) 249 CLR 571
Sentence:Total effective sentence of 3 years and a non-parole period of eighteen months
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms D. Mitchell | Office of Public Prosecutions |
| For the Accused | Mr T. McCulloch | Bowler & Co. |
HER HONOUR:
On 5 July 2021, Russell Carr had won just over $2,000 from a poker machine at a hotel in Sunbury. He received a cheque for the winnings that evening. He spoke to a friend of his, Jamie Day, who offered to arrange for someone to cash the cheque in exchange for a cash commission. In effect, this was a money laundering transaction, which would give Mr Carr cash in exchange for the cheque or discounted amount of cash in exchange for the cheque and allow someone other than Mr Carr, to present the cheque as gaming winnings. At some stage, you, Nathan Glasgow, became a participant in the arrangement. Your home was to be the place where the person would attend to provide cash in exchange for Mr Carr's cheque. You knew both Mr Carr and Jamie Day.
Mr Carr accompanied Jamie Day to your house not far from the hotel, where all three of you waited there until the early hours of the following morning, until a person finally arrived and gave Mr Carr the discounted amount of cash against the face value of the cheque, in exchange for the cheque. Jamie Day had accompanied Mr Carr outside the front of your house for that transaction to take place. You remained waiting inside. Jamie Day then walked Mr Carr back into your house. Jamie Day and you then cornered Mr Carr in the kitchen and demanded that he hand over the money, the cash that he had just received.
The two of you, Jamie Day and you Mr Glasgow, accused Mr Carr of stealing from you. He denied that. You, Nathan Glasgow then produced a knife, a small flat bladed steak knife, said 'I'm going to stab you' to Mr Carr and did just that. You swung the knife towards him, slashing him in the upper left arm. That resulted in a superficial laceration about three centimetres long, and a cut about one millimetre deep.
Mr Carr was understandably terrified. He handed over the money and fled. Police were soon called, but he declined at that stage to tell them what had happened. You, Nathan Glasgow, were soon identified as a suspect, as was Jamie Day and just over a week later, police executed a warrant at your home. There they found, amongst other things, the knife that was used to threaten and slash Mr Carr's arm, and a home-made tomahawk.
You were arrested and charged, and following a contested committal, were committed to this court for trial. Although Mr Carr had ultimately nominated you and Jamie Day as the offenders, until very recently, you had indicated your intention to contest the charges. That changed when you made a sentencing indication application earlier this year, about eighteen months after you had first been charged.
The sentence indication hearing was first listed in February of this year. At that stage, on your counsel's request, I adjourned it so that a psychological report could be obtained to support the application. When the matter returned for hearing, six or so weeks later on 15 March 2023, I was told that you no longer intended to rely on that psychological report, although it had been obtained. The sentence indication hearing then commenced. It was shortly thereafter adjourned because it was clear that there was a paucity of material to support the submissions that were being made.
The third listing took place on 20 April 2023. The application was supported by much better material. At the conclusion of that hearing, you accepted the indication that I gave of the likely maximum sentence that I would impose were you to plead guilty to a charge of armed robbery and one of possession of a controlled weapon, namely the tomahawk and indicated your intention to plead guilty to those two charges.
And so it is that you come to be sentenced for them today.
As I said when I was sentencing your co-offender Jamie Day, following his guilty plea to a charge of robbery and two related summary offences of possession of weapons, relating to weapons found at his home when a warrant was executed and he was arrested on the same day as you were back in July 2021, it is clear just from the circumstances of the offending, I briefly detailed that the sentencing principles of denunciation, deterrence, both and general and specific, and just punishment are significant sentencing factors.
As with Mr Day and so with you, you have previous convictions which add to the need to factor into the sentencing mix, sufficient weight to be given to specific, as well as to general deterrence.
I sentenced Jamie Day to a term of imprisonment of nine months and did not fix any non-parole period.
Your circumstances are materially different from Mr Day's in a number of respects. He pleaded guilty to a robbery, whereas you have pleaded guilty to armed robbery. That was on the basis that whilst he was clearly a participant in the robbery of Mr Carr, the evidence was not sufficient to support knowledge, in advance that you were to produce a weapon, and threaten Mr Carr.
Mr Day pleaded guilty to two charges of possess weapons as related summary offences, in respect of weapons found at his home. You have pleaded guilty to only one. Mr Day was significantly younger. By the time of sentence, he was 24, but was 23 at the time of the offending and you are 43, being 41 at the time of the offending. Both you and Jamie Day have significant criminal histories. He has clearly not had as long as you have had to amass one, but he had prior convictions for offences of violence, possession of a firearm and breach of a community corrections order which had been imposed in respect of the firearm charge. He was, at the time of sentence, in custody, for his role in these unsavoury events, as well as other matters.
You, by contrast, have been on bail for much of the time since being charged, and although I have recently revoked your bail for these charges and you have spent time in custody in relation to other matters, you have only 42 days of pre-sentence detention to take into account. So far as Jamie Day was concerned, a straight sentence was the only realistic option for him, as he was still on remand in respect of other outstanding charges, some of which were to be dealt with by a pending plea, others of which were still contested.
In your case, however, your sentencing submissions were put on the basis that it was appropriate to impose a head sentence and non-parole period, soundly based submissions which I accept. I have taken the time to detail those differences because it makes it clear that whilst consistency and proportionality between your sentence and that of Mr Day are important, considerations of parity do not dictate the same or a similar sentence for the two of you.
You have admitted to a significant criminal history. You have had, as I have said, much longer to amass one than Mr Day. You were first before a court in 1999. Between then and 2009, you were repeatedly before courts. During that time, you were dealt with for eighteen offences of various forms of dishonesty, nine for assault and related offences, including charges of destruction of property and criminal damages, as well as causing injury, threatening to kill and assaults eleven of possess, use or cultivate drugs two for weapons offences, and others for street offences, including begging for alms.
You had received a range of sentencing options. It was clear that up until 2009 no sentence had served to deter you from continuing to offend. However, things changed significantly in 2009 following the last sentence that was imposed upon you. You served that sentence, you were released upon parole, you served out your parole without incident. You remained for another nine or ten years out of contact with the criminal justice system, apparently rehabilitated. If you were still abusing substances, you were keeping it within manageable bounds and engaging in what appeared to be prosocial activities, table employment, stable accommodation, and good connection it would appear with family, prosocial friends and supporters.
And so apart from these offences to which you are now pleading guilty, there is only one other matter after 2009, but predating these offences that brought you before the court. In 2020,you were dealt with for making a threat to kill, assault and again not surprisingly, for drug related offences. Those later charges in themselves can give some indication into what happened, that is that you relapsed into substance abuse and relapsed into offending. The offending in 2020 was again clearly closely related to your substance abuse. The pattern, number and nature of your previous offences between 1999 and 2009 also indicate a very close correlation between criminal behaviour, substance abuse and antisocial behaviour generally.
So the pattern of offending, that significant gap and the relapse in themselves provide significant insight into your offending history and the reasons for your return to contact with the criminal justice system post 2020. It is clear that something significant happened, first of all to turn you back from that path of maturing and being able to lead a meaningful and offence free life and then relapsing into substance abuse which I accept then led to the relapse into criminal offending. It would appear that one of the significant stabilising factors throughout your life had been your very close relationship with your mother and it was her death in 2019 that appears to have triggered a downhill spiral into a relapse, because that is what it is, a relapse into drug use and associated offending.
It is to your credit that you appear to now have recognised that and to have taken the time to reflect, to have a serious look at yourself, to think about where you want to be in the future and to try and set yourself back on the path you have shown you were able to hold to so well for that ten year period between 2009 and 2019.
So what are the matters that were relied on, apart from a demonstrated history of capacity to rehabilitate, and that significant loss, the death of your mother that can explain the relapse, but can also again, point to your capacity to change your ways? You report a childhood that was, although close to your mother, marred by family exposure to your father's violence towards your mother and the very early development of what became a serious and long-term polysubstance abuse history and the amassing of a criminal history related to it.
You have three siblings, two of them it would appear also have had significant criminal histories and have spent time in custody. Your late adolescence and early adulthood were also marred by a number of psychiatric admissions relating either to substance abuse, overdoses or to what would appear to be at least one major depressive episode. So there are vulnerabilities in your childhood and in your psychiatric make-up that can to some extent, explain your substance abuse and your offending behaviour. This does not excuse, but can explain, your conduct. Mr McCulloch acknowledged that the material that he placed before the court, whilst helpful in explaining background and context, was not of a nature that would allow the court to apply the principles in Bugmy.[1] (That is profound childhood disadvantage, which significantly reduces the weight that would otherwise have to be given to denunciation and deterrence.)
[1]Bugmy v The Queen (2013) 249 CLR 571
So the first significant matter that was relied on was that context of the difficult childhood, by reason of your father's abusive behaviour, the impact of that behaviour on you, and the correlation between that and an early exposure to substance abuse that became for a time, a significant addiction. And also it would appear triggered some psychiatric episodes.
What follows from that though, and the next matter relied on was the demonstrated capacity, from your late twenties through to your late thirties, to put that behind you and to live a more meaningful life, and to engage in stable, consistent employment. Your hard work as a concreter, backbreakingly hard work, requires a real commitment to it. That in itself, shows the capacity to do the hard yards, whether it is concreting or whether it is staying clean, that gives hope for your capacity to have a meaningful future and should give you encouragement for your capacity to go back to leading a more meaningful life. So that was the second significant matter that was relied upon, the demonstrated capacity to change. The demonstration of capacity to sustain change in the past. clearly feeds into giving greater weight than might otherwise be expected to your prospects for rehabilitation.
The next significant matter that was relied upon was your plea of guilty, and the weight to be given to it. Although it was late, it was a plea of guilty given where the courts are still struggling with the delays and backlogs caused by Covid. The plea of guilty must be given extra weight for its effort in reducing the backlog or not adding to the backlog that the court is still dealing with. In addition to that, you have spent some time in custody during the pandemic and as a result of the sentence I am going to impose, you will be spending more time in custody under sentence for this. Whilst Covid is now regarded as endemic rather than pandemic, what that means is, it is still in the community and it is still in the prisons. The prison population is a particularly vulnerable population and a prison environment is a particularly challenging one for containment of the virus.
That means that your time in custody is likely to be more onerous than it was for people pre-Covid because of the added likelihood of lockdowns and continued restrictions in access to visits and access to programs. So not only does that reduce the sentence otherwise appropriate because imprisonment is likely to be more onerous, but it also is seen to be something deserving of reduction too because a plea of guilty in circumstances where it is known that imprisonment is going to be more onerous, is something that the courts have consistently said must be reflected in a sentence. So that is another significant matter that was relied upon to take into account in dealing with the sentence otherwise appropriate.
I said in the course of the sentence indication hearing, that had it not been for the Covid effect of imprisonment, given your criminal history and despite the capacity you had shown to be able to remain substance free and offence free for so long, the sentence would have been much greater. But, the Covid reduction does make a significant difference. So it is important that the sentence I impose today is not seen as a direct comparison with a sentence for an armed robbery being dealt with before the pandemic broke out because there is no doubt that this was disgraceful behaviour.
Mr Carr was a man you had known for over ten years. Whilst there may have been a drug background or a drug debt background in relation to it, this was nothing more than a cynical, nasty and cowardly exercise of relieving someone of money. Whether or not you believed he owed you money, whether or not you believed he had done wrong by you in the past, he was lured to your house under a promise, which he obviously trusted, that he would be able to exchange that cheque for money and he would be able to go away.
Instead, he was lured back into your house, set upon by two against one, and taken to with a knife. That is disgraceful and the two on one makes it particularly cowardly. So that has to be condemned and denounced and the sentence must reflect to you, as well as to other people, that that cannot be allowed to go un-noticed, unmarked and unremarked. It is something that should and must attract significant punishment. Those are the main factors that were relied upon.
I am not going to spend as much time as I normally would dealing with your childhood, background, upbringing and matters that are essentially historical because you are now in your forties. You are a mature adult and you are not someone for whom significant childhood deprivation means a continuing effect that makes it relevant to detail, at the time of sentence.
You are, as that ten year period between 2009 and 2019 demonstrated, capable of sustained change and it is what you do as an adult not what you did or experienced as a child or as a young adult that is more relevant. So I take into account your demonstrated capacity to change and your apparent commitment to sustain that now.
The breaking the cycle opportunity that comes with this, includes a loss of liberty. But it gives you the best chance if you choose to take advantage of it, to stay substance free whilst in custody and to remain substance free, once you have set that pattern down again upon your release. And that means you can look forward to a happy time from your early forties, through to the rest of your life without coming back before the courts. I hope you will be able to say to younger people who go wrong, 'You can come back from this, it doesn't have to blight your life and your future'. You have done it once, I am sure you have got the capacity to do it again. I have great hope that you will not be back before the courts, and certainly not for something as low as this.
So balancing those matters with the need to denounce, the need to reflect the continuing need to deter you, the need to temper all that with a degree of compassion and recognition of effect of Covid on imprisonment and your belated but significant acceptance of responsibility, I have come to the view that a significant gap between the head sentence and the non-parole period is appropriate.
Before I move onto formally pronouncing sentence I want to also deal with what was said to be an added burden of imprisonment, by reason of your history of epileptic seizures.
Whilst I have not been given any direct evidence of a diagnosis of epilepsy, I accept that you have been diagnosed with epilepsy and that you have in the past, suffered seizures. I accept that having a seizure or the fear of having a seizure at any time is frightening and I accept that the fear of having a seizure in custody, could be even more frightening because you may be alone in a cell or in a cell with people who do not appreciate what is happening. Whilst cynically, one could say if you are leading a lifestyle where substance abuse is a part of it, then it could be said you were not taking as good care of yourself as you should have. And so the fear was also present when in the community and particularly, when leading a more dissolute life. I accept that it is a significant fear. However, I am not satisfied on the evidence before me that regular medication with Rivotril is the only way to manage that and that appropriate medical management and medication is available to you.
So whilst I accept that suffering from epilepsy and living with the fear of seizures is something to also take into account as adding to the burden of imprisonment, I do not take into account the absence of Rivotril as a medication, (if indeed that is the case in custody) to add any further to the burden of imprisonment.
So having considered all of those matters, in my view, the appropriate sentence is as follows.
Nathan Wyatt Glasgow, on the charge of armed robbery, to which you have pleaded guilty, you are sentenced to a term of imprisonment of three years. On the related summary offence of possession of a prohibited weapon, namely the tomahawk, you are sentenced to be imprisoned for a period of one month, that is to be served concurrently. That means your total effective sentence is a term of three years and the non-parole period I fix is eighteen months. I declare that you have spent 42 days in pre-sentence detention and I direct that be counted and reckoned as part of the sentence already served.
I declare pursuant to s6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years and six months imprisonment and I would have fixed the period of three years as the time that you would have had to have served before being eligible for parole.
I will make any forfeiture or disposal orders in respect of the tomahawk.
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