Director of Public Prosecutions v Good
[2020] VCC 1974
•8 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-19-00798
Indictment No. J12879619
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB GOOD |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 November 2020 | |
DATE OF SENTENCE: | 8 December 2020 | |
CASE MAY BE CITED AS: | DPP v Good | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1974 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of theft and one charge of aggravated carjacking – 24 year old offender with numerous prior convictions for dishonesty and violence who had completed a 3½ year sentence of imprisonment only months before subject offending – long-term substance abuse – further period on remand for subject offending of some 2 years and 3 months – pleas of guilty (albeit late on aggravated carjacking) – some remorse – some rehabilitation steps taken since offending – PTSD and principle in Bugmy applied
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v R [2013] HCA 37
Sentence: Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 3 years. s6AAA: 4 years and 10 months’ imprisonment with a non-parole period of 3 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menon | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B Johnston | Emma Turnbull Lawyers |
HER HONOUR:
1 Jacob Good, you have pleaded guilty to one charge of theft, which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of aggravated carjacking, which carries a maximum penalty of 25 years’ imprisonment. In relation to that charge, s10AD of the Sentencing Act 1991 mandates that a term of imprisonment be imposed with a non-parole period of not less than 3 years unless the Court finds that a special reason exists pursuant to s10A of that Act. No special reason has been argued on your behalf and, accordingly, the minimum non-parole period applies.
2 The circumstances of your offending are detailed in the Summary of Prosecution Opening (Exhibit “A”).
3 Charge 1 involved theft of a blue Honda motorcycle on 24 May 2018 from where it had been parked on the footpath outside the owner’s residence. Police located this motorcycle at your residence in Kensington when they arrested you in relation to Charge 2 on 2 November 2018.
4 Charge 2, aggravated carjacking, was committed on 26 October 2018. At approximately 9.45pm, your victim, Mr Lizcano, who was an Uber Eats food delivery driver, was making a delivery to an address in Kensington whilst riding his red Honda motorbike. Upon arriving at the delivery address, he turned off his motorbike, but left the keys in the ignition as he moved 2 to 3 metres away to the door of the delivery address. When he rang the doorbell, the resident who answered indicated that he had not ordered a delivery. Your victim then heard a noise and turned around to see you sitting on his motorbike trying to start it. Your victim asked you what you were doing and stated that it was his motorbike and then tried to take the keys from you, but you pushed his hand away. You then put your left hand into a left pocket of the jacket you were wearing and produced a knife with a black handle, which had a button, the pressing of which released a blade of approximately 3 to 5 inches. Your victim froze and was in fear. You yelled out to another male who was up the street behind a tree. That male then turned and ran away while you wheeled the bike down the laneway and then started it and rode away onto Kensington Road.
5 Your victim reported the matter to police, gave a description of you and completed a face drawing of you. Some days later on 1 November 2018 a red motorcycle was advertised for sale on Facebook. The advertisements were made by a profile in your name with your picture. Two separate members of the public contacted the police after seeing the advertisement, one because the advertised price for the red motorcycle seemed too cheap and the other because she saw a comment under the post alleging the bike was stolen. She also observed a mobile telephone number on your profile. The phone was registered to you and the associated address was your residence in Kensington, where you were arrested by police the following day.
6 When interviewed by police on 2 November 2018, you admitted that you had stolen the bike and had been scoring drugs shortly prior to that time. You stated that when you came upon the bike you thought it was “too good to be true” and when challenged by the owner you told him “Fuck off, you’ve got insurance” and “Either way, I’m taking the bike”. You falsely denied that you had a knife or that you had committed an armed robbery. You agreed that you had taken it to Hallam, where you met up with a friend and left the bike with him, but had advertised it for sale on Facebook. When police asked you about the presence of the blue motorcycle at your residence, you admitted to having seen it and deciding to steal it “purely just for profit and fun, just for my gain”.
7 You were charged with both offences on 2 November 2018 and remanded in custody, where you have remained ever since. On 23 April 2019, you entered a plea of guilty in relation to Charge 1, theft of the blue motorcycle, but conducted a committal hearing in relation to the aggravated carjacking, during which your victim was cross-examined on your behalf. You were committed for trial which was listed for 25 May 2020, but adjourned due to the pandemic. Ultimately, on 12 August 2020, you indicated an intention to plead guilty to Charge 2 and the matter was adjourned for plea hearing to 25 November 2020.
8 You are presently aged 27 years, having been born on 1 November 1993. You come before the Court with a very concerning criminal history dating back to your first appearance in the Children’s Court on 16 February 2011 for theft of a motor vehicle and driving offences. Thereafter you have appeared in different courts, namely, the Children’s Court, Magistrates’ Court and County Court, on a total of eight occasions for a significant number of serious offences. These include six prior offences for armed robbery, two attempted armed robberies, two attempted robberies, four thefts of a motor vehicle, two attempted thefts of a motor vehicle, a host of other dishonesty offences and assaults, driving offences, possessing a dangerous article, being a prohibited person in possession of an imitation firearm, crimes of damaging property and other antisocial offending.
9 In the Children’s Court you were given, without conviction, Youth Supervision Orders, which you breached. In December 2011, you were ordered to be detained in a Youth Justice Centre for a period of nine months for offences which included two armed robberies and an attempted armed robbery. In the Magistrates’ Court you were given, both without conviction and conviction, Good Behaviour Bonds with conditions to engage in alcohol and drug counselling, and a Community Correction Order, which you breached.
10 Your most serious prior offending comprised three armed robberies, two thefts and being a prohibited person in possession of an imitation firearm. On 25 October 2014, you were sentenced in the County Court at Melbourne to a total effective sentence of 3½ years with a non-parole period of 2 years. Your counsel stated that you served the entire head sentence of 3½ years. An email from the Adult Parole Board dated 3 December 2020 (Exhibit “B”) confirms that your behaviour in prison was satisfactory and the only reason that you were not granted parole was because you were unable to nominate suitable accommodation. You were released after serving that sentence on 25 October 2017. Seven months later, you committed Charge 1. Five months after that, you committed Charge 2.
11 In a plea on your behalf, Mr Johnston relied heavily upon a psychological report provided by Mr Ian MacKinnon dated 17 September 2020 (Exhibit 1). This detailed a disadvantaged background, both parents having been drug users, and your father having been a violent individual. Your parents separated when you were approximately 2 years old and you were exposed to violence by a subsequent partner of your mother. It seems that when you were approximately 12 years old an associate of your mother called “Darryl” offered to take on a fatherly role as your carer and, in this role, he sexually abused you and also provided you with illicit drugs. Two historical pre-sentence reports provided from Youth Justice dated 15 October 2010 and 16 December 2011 (Exhibit 4) confirmed your very disadvantaged background and that your mother obtained an Intervention Order against one of her partners who had assaulted her and also you. It appears that your formative years involve numerous accommodation changes and living with a variety of people. You had five changes of primary school and three changes of secondary school. You had a troubled relationship with your mother and experienced behavioural issues at school for which you were expelled on more than one occasion. Your education was fragmented but you did complete a Certificate I in English, and panel beating, and gardening and painting, and whilst remanded at Melbourne Youth Justice Centre, you were selected by YMCA to complete a Certificate II in Fitness. Unfortunately, you showed a lack of willingness to become involved in any counselling or support services or to comply with statutory supervision.
12 The later of the two reports from Youth Justice certainly mentions a carer by the name of “Darryl”, albeit that there was no mention of the abuse which you allege against him. In that report there were quotations from an earlier pre-sentence report.
“Jacob’s family background is categorised by dysfunction, instability, inconsistency and insecurity resulting in Child Protection involvement for approximately 2 years. It would therefore be reasonable to suggest that Jacob’s family background has contributed in many ways to Jacob’s emotional instability including poor judgement and decision-making, feelings of grief and loss, confusion and low self-esteem and confidence. Jacob maintains it is these emotions that seemingly manifested in inappropriate and offending circumstances resulting in his current circumstances, further compounded by his solid connection with peers who pose as a negative influence and his substance use at the time.”
13 It was noted in that report in December 2011 that you had had nine admissions into remand over the period commencing 2008. It was also noted that on 16 December you had an appointment with Dr Chau, psychiatrist, for the purpose of assessment to determine treatment for your recent reported symptoms of anxiety and paranoia. You apparently reported that you were prescribed Abilify (Aripiprazole), which is an antipsychotic drug, to manage your symptoms. It was noted, also, that you had a lengthy history with Youth Justice and had been afforded ample opportunity to improve your response to commitment for positive change, but had not made a sustained effort and your future prognosis was assessed by Youth Justice to be poor. At that time, you were considered unsuitable for a further community-based disposition.
14 In sentencing you I take into account in accordance with the principles in Bugmy v R [2013] HCA 37 that you have had significant deprivation during your upbringing and I acknowledge that the impact of being surrounded by drug abuse and violence and lack of moral guidance can compromise your ability to mature and learn from experience and, hence, be an enduring disadvantage.
15 In the most recent psychological report from Mr MacKinnon, he considered you to have normal functional intelligence and general cognitive functioning, but thought you were suffering from Complex Post-Traumatic Stress Disorder, which had arisen in response to multiple traumas occurring during your formative years. In his opinion the antecedents to your Post-Traumatic Stress Disorder appear to have been sexual, emotional and physical abuse, to which you were subjected during your childhood perpetrated by multiple adults. You had a lack of appropriate role models and later violent encounters with other young men and incarceration in early adolescence, and imprisonment in adulthood “added energy” to your Post-Traumatic Stress Disorder, according to Mr MacKinnon. He also considered that you had many symptoms and behaviours associated with Borderline Personality Disorder, albeit that he did not consider that these were entrenched.
16 Whilst I accept Mr MacKinnon’s diagnoses, I do not accept his opinion that you were necessarily self-medicating your Complex Post Traumatic Stress Disorder and thereby your ability to reasons was degraded, and this contributed to your offending. He seems to simply accept that you were in the early stages of substance-induced psychosis which distorted your perception, yet your Record of Interview gives a crystal-clear account of what went on in the offending for which I must sentence you. You had apparently taken methamphetamine shortly before the aggravated carjacking. Mr MacKinnon has not read your Record of Interview and the Court has not been given any explanation as to why you were carrying a knife. Hence, I do not accept Mr MacKinnon’s analysis and indeed, he took a history from you that “I just wanted the motorbike” thus, whilst I accept that there was no significant preplanning involved in the aggravated carjacking, the fact of the matter is that you had stolen another motorbike just some months earlier because you wanted it and you seemed to have made dishonesty a way of life judging from your prior criminal history.
17 I note that an earlier report of a psychological assessment conducted by Ms Gina Cidoni and embodied in a report dated 6 August 2014 (Exhibit 3) differed from Mr MacKinnon, in that she assessed you as suffering from borderline intellectual function. However, this was not confirmed in your more recent testing and I noted that your vocabulary and capacity to express yourself in your Record of Interview was quite sophisticated at times. In addition, your counsel told the Court that you were an avid reader and a list of many, many books that you have read whilst remanded in custody was supplied to the Court (Exhibit 5). However, Ms Cidoni did make mention of your dysfunctional background and the fact that, at that stage, you were suffering severe anxiety and depressed mood, and met the full criteria for Post-Traumatic Stress Disorder. She also took a history that the previously-mentioned “Darryl” had provided you with drugs and subjected you to sexual assaults. She stated that you had felt uncomfortable disclosing this, as you had disclosed it to a youth worker whilst in detention but were not taken seriously. It was something that you were too ashamed to tell your mother as you felt dirty and distressed by it.
18 I accept on the balance of probabilities that the abuse by “Darryl” did occur and added to the trauma of your upbringing and adversely impacted upon your psychological state. I do not consider that there is a necessary connection between your offending and any mental-health conditions or impairments suffered by you. You have engaged in long-term substance abuse and had used methylamphetamine prior to the aggravated carjacking. Indeed, you have a long-term interest in motorbikes which form the subject of each of the charges for which I must sentence you. However, I do take into account your psychological conditions as part of your personal circumstances. Indeed, Mr MacKinnon has suggested that you would be well-advised to establish a long-term therapeutic alliance with an appropriate psychologist. Nevertheless, he thought that if you were in prison for a significant term for the current matters, you are likely to be able to cope well enough in the prison environment, although he noted that you had reconnected with your mother and that, if she became increasingly unwell or unable to care for herself, that was likely to cause extreme distress, perhaps of a self-destructive nature to you.
19 In sentencing you, I take into account that you have now been in custody on remand for these offences for a period in excess of two years. Although you pleaded guilty to Charge 1 fairly promptly, it took almost two years from the date of the aggravated carjacking for you to ultimately indicate that you would plead guilty to it in July 2020. Further, your victim was put through cross-examination at committal. Nevertheless, despite the fact that it was a late plea, you are entitled to the utilitarian benefit relating to it, and I note this is enhanced by the fact we have been living under the restrictions of a pandemic where it has not been possible to conduct criminal trials. Despite your false denial of having a knife, you did acknowledge in your record of interview that your victim would have been scared and expressed the wish that you could apologise to him. This morning, you have sent a letter to the Court reiterating that wish and expressing the desire to work on living a drug-free life and reconnecting with your 6 year old son from a former relationship (Exhibit 8). Thus, it seems that there may be some remorse attached to your late plea of guilty on Charge 2.
20 I also note your counsel’s submission that for the whole of your remand period you have been held at Hopkins Correctional Facility because you are held in protection due to some perception amongst inmates at other prisons that you have somehow assisted prison authorities, which you deny. Your counsel stated that you have found this stressful as the majority of prisoners there are sexual offenders, and in the light of you having been subjected to sexual abuse by your carer, Darryl, you have felt vulnerable because you have been asked for sexual favours. I take these factors into account and acknowledge that serving a term of imprisonment with psychological conditions like Post-traumatic Stress Disorder is more burdensome than for those who do not have such an affliction, and note that you are taking prescribed anti-depressant medication.
21 Overall, you have used your time in prison on remand well in that you have apparently remained free of illicit drugs. You have apparently had random drug testing while in Hopkins in March, November and December of 2019 and again in March 2020, and urine analysis revealed the presence only of medication and not illicit drugs (Exhibit 6). This is significant in the light of your lengthy history of substance abuse. Unfortunately, due to the restrictions during COVID, your capacity to engage in educative or rehabilitative courses has also been restricted, although I note from your earlier time in custody during 2016 and 2017, you had undertaken courses in microbusiness operations and information technology, as well as courses in horticulture (Exhibit 7). In relation to the latter courses, I note that although you do not have evidence of a particularly solid work history, whilst you were last at liberty in the first part of 2018, you were employed for some six months at Green Gardens Landscape Business and this, together with construction, in which you say you have been endeavouring to do some online courses, are interests of yours. In addition, you have apparently been employed in custody making number plates and performing welding and carpentry work. Your counsel stated that your general health has improved since you have ceased using illicit substances and been on a methadone program. He stated that, when you were initially remanded in custody, you were gaunt and underweight and are now more healthy, having put on almost 40 kilograms. You are to be given credit for the positive steps you have taken whilst in custody, particularly this year during which the conditions of incarceration have been more onerous during the pandemic, especially the inability of prisoners to receive contact visits. I have taken into account those more onerous conditions in arriving at the sentence which I intend to impose.
22 When you were last before the County Court and sentenced on 25 September 2014, the sentencing judge described your criminal history at age 20 as one of the worst that he had seen for acts of dishonesty and violence. He also noted your failure to engage in rehabilitative dispositions by courts and he described your prospects of rehabilitation, even for a young man, as being “grim”.[1] I consider that it would be wrong of this Court to ignore your prospects of rehabilitation and it may be that a prolonged period of being in custody without using illicit drugs, coupled with you now being 27 years of age, has given you time for reflection and you are starting to develop some maturity. I still regard your prospects of rehabilitation as being guarded. However, you have not previously had the benefit of a structured return to the community on parole and it seems to me that if you are given a head sentence with a parole period, and granted parole (which of course is a decision for the Parole Board and not myself), then you may find that you can still turn your life around. You have rehabilitated the relationship with your mother, who no longer uses drugs, so you have some support and I do note that Mr MacKinnon says that your antisocial personality traits are not necessarily entrenched.
[1]DPP v Jacob Good (Unreported, Judge Stuart, County Court of Victoria, 25 October 2020) at [37]
23 The theft of someone’s mode of transport deprives that person of a very essential asset in their life. Your offending on Charge 2 is particularly serious. It was brazen and frightening, and carries with it the aggravating feature that you took away your victim’s means of earning his living as an Uber Eats delivery driver. In sentencing you, the Court must denounce this serious offence of aggravated carjacking which, unhappily, has become so common that our legislature, in an attempt to deter those who are minded to commit this offence, has mandated that there should be a minimum non-parole period of three years. It is important in sentencing you that the message gets through to others that this sort of behaviour will not be tolerated and, obviously, you need to be specifically deterred from violent and dishonest offending in the light of it coming on top of a long history of that type of offending.
24 The seriousness of Charge 2, aggravated carjacking, is indicated by the maximum penalty of 25 years’ imprisonment and the mandatory minimum non-parole period of 3 years as part of a term of imprisonment prescribed by Parliament. The prosecution has acknowledged that the aggravated carjacking committed by you is towards the lower end of seriousness given the lack of evidence of any planning, the lack of gratuitous violence (other than production of the actual knife) and the fact that it was of short duration. Of course, the Court must denounce your conduct and, as previously indicated, give appropriate weight to general and specific deterrence. It is also necessary to ensure that just punishment is imposed.
25 I am conscious of your relatively young age and the considerable amount of time you have already spent in custody for these offences, coming very soon after you served a term of imprisonment of 3½ years. In arriving at an overall sentence, I am mindful of the principle of totality and the need to ensure that what prospects of rehabilitation you have are not annihilated by a crushing sentence.
26 On Charge 1, theft of a motor cycle, you are convicted and sentenced to 12 months’ imprisonment.
27 On Charge 2, aggravated carjacking, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
28 The sentence imposed on Charge 2 is the base sentence. I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. The Total Effective Sentence is thus 4 years’ imprisonment.
29 I direct that you serve a period of 3 years’ imprisonment before becoming eligible for parole.
30 I declare a period of 767 days to be time reckoned as already served under the sentences imposed this day.
31 Pursuant to section 6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the Total Effective Sentence imposed would have been 4 years and 10 months’ imprisonment, with a non-parole period of 3 years and 10 months.
32 I have found that you were affected by illicit drugs when you committed Charge 2 and, therefore, Charge 2 satisfies the definition of a “serious motor vehicle offence” pursuant to section 87P of the Sentencing Act. Thus, I am obliged to cancel all licences to drive and disqualify you from obtaining another licence for a period of 24 months.
33 On Charge 1, pursuant to section 89(4) of the Sentencing Act, I order that all licences to drive are cancelled and you are disqualified from obtaining a licence for a period of 3 months, such period to be concurrent with the period of 24 months imposed in relation to Charge 2.
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