Director of Public Prosecutions v Grace
[2015] VCC 743
•2 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-00441
CR-15-00913
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM GRACE |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 May 2015 |
| DATE OF SENTENCE: | 2 June 2015 |
| CASE MAY BE CITED AS: | DPP v Grace |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 743 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to seven charges of armed robbery – drive whilst authorisation suspended – use unregistered vehicle on highway – breach of suspended sentence – youthful offender
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Criminal Procedure Act 2009 (Vic); Road Safety Act 1986 (Vic)
Cases Cited:Boulton v R [2014] VSCA 342; R v Tokava [2006] VSCA 156; DPP v Malikovski [2010] VSCA 130
Sentence:Convicted and sentenced 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr R. Stary | Stary Norton Halphen |
HIS HONOUR:
1Sam Allan Grace is a ticketed bricklayer. He was born on 7 March 1993. He is now aged now 22, and these offences occurred when he was 21. In this plea Mr Stary appeared on behalf of Mr Grace and Mr Hayward appeared on behalf of the Director of Public Prosecutions. Insofar as Indictment No. E13385210, that Indictment was an Indictment containing seven charges of armed robbery. The seriousness of such an offence is demonstrated by the fact that for a breach of Section 75A(1) of the Crimes Act 1958, the Parliament has prescribed a maximum penalty of 25 years' imprisonment. Such a penalty is illustrative of the approbation and disgust in the community in regard to such offences, and the call by the community for appropriate punishment for persons who commit offences of this nature.
2Insofar as the particular details of each of those robberies, they were set out in Exhibit A being the summary of prosecution opening for which I thank the learned prosecutor, and in regard to which Mr Stary accepted as being the facts upon which I sentence you, Mr Grace.
3The important point to make I suppose before I rehearse that summary is that the prior offences, which were tendered and admitted by Mr Stary. Significantly it is to be noted that on 27 June 2014 at the Broadmeadows Magistrates Court you had been convicted of robbery and recklessly causing injury, and on that day had been given a wholly suspended sentence with an operational period of 12 months. The point needs to be made that these seven armed robberies were committed within approximately three months from that suspended sentence being granted to you.
4Coming back to the summary of the offending, all of the offending in these seven serious charges took place over an 11 day period, from 15 September to 26 September 2014. Charge 1 involved the 7-Eleven Store at Coburg North and took place on 15 September 2014. In this instance you were armed with a starter pistol. The loot, or the result, of the armed robbery was 15 packets of cigarettes and $500 taken from the till. I say this often, it is incomprehensible, but indeed an illustration to all (I will talk about the family's understanding) in our community that persons commit such serious crimes, with such dramatic consequences, for almost nothing, as I said, 15 packets of cigarettes and $500 from the till. That comment applies to all of your charges, Mr Grace.
5Charge 2 at the Caltex Pascoe Vale Station on 22 September 2014, again armed with a starter pistol. You said to the store attendant, "Don’t make me shoot you.” Again, 15 packets of cigarettes and $657 taken from the till.
6Charge 3 at the 7-Eleven store in Maribyrnong. This charge was in my view a more serious charge in the sense that it is aggravated on this occasion by you being present with a co-offender, who was carrying a single barrel shotgun. Again, $326 taken from the till.
7Charge 4 at the United Service Station Keilor Park on 23 September 2014, on this occasion armed with a starter pistol. Again, 120 packets of cigarettes, and $400-450 taken from the till.
8Charge 5, at the 7-Eleven Ascot Vale, again armed with a starter pistol. This took place on 26 September 2014 which was the last day of this spate of criminality. This was the first of the three offences that took place on this day. On this occasion at the 7-Eleven, Ascot Vale you were armed with a starter pistol. Again, an unknown quantity of cigarettes was stolen and the princely sum of $200-300.
9Charge 6 at the BP Service Station Glenroy, same day, armed with a starter pistol again telling the attendant to open the till or you would shoot him, again $300 taken from the till.
10Finally, the last armed robbery charge committed on that date, and the last of the seven, was at the Club X Adult shop at Coburg North. You were armed with a starter pistol. An unknown co-offender was wearing a balaclava and armed with a single barrel shotgun. Taken were 35 "mood tablets", two keys to the safe and again, approximately $400 from the till.
11As I say, the full circumstances and facts making up those charges have been accepted by Mr Stary and are set out in the detail in Exhibit A. I have already mentioned that as part of your plea your prior offences were accepted, in particular the fact that you were given the suspended sentence on 27 June 2014. It is, however, not to be missed that in September 2013 when you were 20 there was another crime in which you were fined $1000, which was possession of a controlled weapon. The consequences of such a breach is that the criminality in this Indictment is aggravated by being committed while you were serving a suspended sentence. I make the point, however, that at no stage can a person in your position be sentenced again for those offences. However, the difficulty with a serious prior such as that and the fact that you were given a suspended sentence is that it acts to limit the options that this Court has. Although, as you would have heard in the discussion between myself and your counsel, given the actions of our Parliament, the options open to a sentencing Judge, nowadays are very limited anyway.
12However, owing to your plea to these seven counts of armed robbery, that in effect amounted to a breach of the suspended sentence. Again, with your consent, given by Mr Stary, pursuant to Section 83AM of the Sentencing Act 1991, the hearing of the breach matter was able to take place in this Court, that is, these offences constitute a breach of suspended sentence. As all record of the suspended sentence has now been deleted from the Sentencing Act 1991 by Parliament, it was necessary to go back to the Sentencing Act 1991, as it was when the sentence was imposed upon you. As it stood before Act 32 of 2013, a breach of suspended sentence is an offence, which warrants a maximum penalty of three months' jail. Again, Section 83AR, as it then stood before Act 32 of 2013, provided for a number of alternatives. However, unless they are exceptional circumstances, of which there was no suggestion in your case the legislation prescribed that the three month sentence that had been wholly suspended must be restored.
13In addition, you asked the Court to deal with two summary offences. They have been transferred to this Court for determination pursuant to s.145 of the Criminal Procedure Act 2009. The first is driving a motor vehicle while your license was suspended for which the maximum penalty is 30 penalty units and/or four months jail, pursuant to s.30(1) of the Road Safety Act 1986, the second being drive an unregistered car for which the maximum penalty is 25 penalty units pursuant to s.7(1) of the Road Safety Act 1986.
14As part of the prosecution case the victim impact statement of Sharon Kilmartin dated 15 May 2015 was tendered. Sharon Kilmartin was the victim in Charge 7. In regard to her statement it seemed to me quite realistic and genuine comments from a person so confronted.
15A disposal order was sought by the prosecution which I signed, and the Court was advised that any order made of imprisonment would have to take into account, pursuant to s.18 of the Sentencing Act 1991, pre-sentence service of 103 days.
16The prosecutor tendered submissions as to sentence, which became Exhibit D. Again, I thank him for that. That prosecution outline was dated 20 May 2015. He took the Court to the circumstances involving the breach, and a chronology which showed you very quickly plead guilty in this matter and there was no issue in regard to those matters of timing. He spoke essentially of your plea of guilt and the fact that this Court was not concerned with parity issues because no co-offender has been dealt with to this stage. He noted that you were no longer a young offender, as defined under the Sentencing Act 1991, and took the Court to a number of cases for which I thank him. Firstly, to the fact that you committed these offences while under the influence of drugs, an affliction you had been under for some time. While the Courts have at all times accepted and understood such as an explanation, the attitude of the Courts was and has been explained in a number of the cases that of course such factor is not in any way ameliorating of your criminality. Mr Stary did not dispute such principles.
17The learned prosecutor then went to a consideration of current sentencing practice reflected in Boulton v The Queen [2014] VSCA 342 (‘Boulton’), in particular in two of the cases involved in that determination by the Court of Appeal of this State in December of last year. By coincidence, both of those cases being Boulton and Clements were sentences of mine. I am quite well aware of the circumstances leading to the sentence that I proclaimed and the comments made by the Court of Appeal in its guideline judgment.
18At paragraphs 32-33 essentially the submission of the prosecutor was that in all the circumstances of the case, in particular the commission of seven armed robberies, and taking into account the penalty imposed by Parliament, that the appropriate sentence was an immediate term of imprisonment. He further submitted that a Community Correction Order, whether on its own or combined with a period of imprisonment, would not meet the needs of the sentence required here, to both punish and denounce your crimes and effect general and specific deterrence.
19The learned prosecutor also took me to particular armed robbery cases which I will not go over except to remark that they were detailed at paragraph 33 and set out the attitude of the Courts of this State, where we have to deal regularly with armed robbery, which is a grave and unfortunately prevalent offence. Essentially, these principles set out that while of course a person of your age, and I will come to the mitigatory matters in regard to you, one takes into account the issues of rehabilitation and no Court likes to contemplate the idea of a person such as you, at your young age, being sentenced for a significant period of imprisonment. However, involved are important factors of general deterrence of persons who commit armed robberies and the learned prosecutor referred me to three cases set out in paragraph 33. Mr Stary did not dispute such principles.
20Coming then to Mr Stary's submission on your behalf. He also, for which I thank him, tendered as Exhibit 11, written submissions as to the sentencing, and tendered by way of Exhibits 1-10, materials, which he spoke to during the plea. I will talk specifically about a number of those. Today has been tendered Exhibit E, which was the assessment report called for from the Community Corrections Department, which was positive.
21As part of Mr Stary's plea, he first spoke about the genuine efforts you have made since being released from prison and granted bail, the steps you have taken under the CISP program and in particular, the efforts you have made to rid yourself of the curse of ice addiction, which you have had for some considerable time. He tendered a report, of Chris Rose from the Bayside Private Clinic. That report is Exhibit 6. Mr Rose was in Court and Mr Stary summarised the evidence Mr Rose would have given to the Court. That report was positive in regard to the in-house treatment that you received in the period 20 January 15 through to 17 February 2015, your attendances since that time, the steps you have taken to both receive ongoing counselling and provide peer education and indeed the volunteer work that you undertook. Mr Rose's evidence, by way of Exhibit 6, was significant evidence in your favour.
22Mr Stary then called your father, a not-so-easy task for any father I would think. Tendered was a letter by your father dated 20 January 2015, Exhibit 8A. With no disrespect to Mr Stary, a better plea could not have been written. Your father, in his letter, took me through your background, took me through what unfortunately I see in this Court far too often, families sitting in this Court desperately upset when they suddenly realise the consequences of their son, of which in most instances they are unaware, being addicted to drugs, and in this case being addicted to methamphetamine. As to the suspended sentence, where you had been given a chance, no doubt your family would have been of great assistance, unfortunately again your family were totally ignorant of such.
23Your father spoke of the issues that beset the family once they visited you in custody; the explanation given as to your addiction to methamphetamine. Your father said that since that time, and while in custody, you have shown genuine remorse for this offending, that you have attended to your rehabilitation and that your family and friends have remained loyal. I accept that totally. Your father also said that he explained to you, especially given your mother's occupation, how undesirable, cowardly and shameful the crimes that you committed were, and the appreciation of the family of such. Your father explained that, to the best of his knowledge, since you have been on bail you have been totally abstinent in regard to drugs, it would appear that the urine tests and all observations made of you seem to confirm that. Although, I think it is fair to say that this Court sees, on more than one occasion, early positive signs, where a person has had an addiction such as you. As pointed out by Mr Newton, yours is a long path to make sure you do not fall into this trap again.
24Your father explained your upbringing, your background, the fact that you were successful at work, the circumstances where since being released from jail you obtained work through a friend, who also provided letters to the Court (Exhibits 9A and 9B), and that you have been committed to getting your life back on track with the support of your family and professional services. Your father concluded with this comment: "My son is dearly loved by me and his family and we will support and guide him in all the challenges that he faces now and in the future." As I say, that was significant evidence before the Court.
25A letter from Mr Lipplegoes, your employer, was tendered (Exhibit 9B), and he spoke on your behalf. He spoke of your work ethic and of his steps and support of the family and desire, if he can, to continue to support you.
26Coming to the plea itself, Mr Stary stressed, looking at the events, which is again often the position, not only do we see the commission of these grave offences for almost no return, but committed in circumstances where it is clear that one would be very easily recognised, and within a very short compass, Mr Stary referred to the manner in which you executed these armed robberies, being obviously aware that CCTV would apply. Mr Stary submitted that you had pleaded guilty at the first opportunity, that I should accept the remorse that you have shown as genuine, and I have already said that I do, that I should understand the utility of this plea being that it is a plea of guilty, which saves the State the cost of a trial and more importantly saves all of the victims, in these seven armed robberies, the trauma of having to come to Court.
27It is clear from the material tendered that the explanation of this rash of criminality is your drug addiction, in that regard a report was tendered of Mr Newton, forensic psychologist, Exhibit 1, to which I will briefly refer. Mr Newton confirmed your history, which I have referred to, and which your father also gave me. Mr Newton noted the completion of your apprenticeship, the fact that you were a ticketed bricklayer and now work as a concreter. Again, to find yourself in this position when many in the community who come before the Court have no such opportunities, you are relatively unique, with strong family support and an excellent trade.
28You first began drinking heavily at about the age of 16. You commenced cannabis at about the age of 15 and by 17 began to use amphetamines, known as speed, at social events. Unfortunately, by 18 you graduated to the far more powerful stimulant, methamphetamine, which we know as ice. Looking back, as your father said, you then became somewhat conflicted and distanced, even in the family, although your family were not fully aware of what was happening. It is noted by Mr Newton that you reported to experiencing increased psychological instability, that you spent extended periods away bingeing on methamphetamines and then resorted to drugs such as GHB to induce sleep. The combination resulted in intense mental confusion and paranoia, which at times approached psychotic proportions. It appears, at least in that regard, that because you have been able to stop at the stage you have and hopefully continue to stop, those psychotic symptoms may well be avoided in your case. One hopes so.
29As to your rehabilitation, Mr Newton confirmed all the factors that have occurred since you were released in January 2015 and noted the various programs, that I have referred to, and your participation in Narcotics Anonymous meetings on a weekly basis. Mr Newton noted that with such assistance you have been able to remain abstinent from illicit drugs and as I said, tendered as Exhibit 2, are the urine tests conducted upon you. Mr Newton found a great anxiety in you as to what are going to be the legal consequences and noted of course your frank admission that the offending was committed to finance your drug addiction.
30As to his opinion, at p.6 of his report as to your mental state, Mr Newton indicated that you were experiencing significant symptoms of anxiety and depression and were concerned about your legal predicament. You were, as he described, in a period of remission from severe drug addiction. Because of the symptoms you have experienced, he also noted that there is an elevated risk for subsequent psychosis, that is, both drug-induced and primary. That of itself should ensure that you never touch drugs again because you know the path and you have been told the path, if you ever get on these drugs again where you will go. Forget the criminal consequences.
31Mr Newton described your addiction as sufficiently severe to warrant the diagnosis of a severe stimulant use disorder. He took the view, which is obvious, that your offending took place when your drug use was at its most severe. That you are in the future going to need ongoing assistance of a mental health professional to ensure that you improve and maintain your psychological stability. He noted, and I accept the submission from Mr Stary in this regard, that a period of imprisonment would be particularly difficult for you because of the challenges faced in dealing with that problem. He stressed that you need long-term rehabilitative engagement and in regard to you personally will need dedication and perseverance if you are to achieve what you say is your stated desire for rehabilitation.
32Mr Stary stressed the fact that you are still, while not a young offender under the Sentencing Act 1991, a youthful offender. I have already said the circumstances relevant to such offending, which impacts upon the Court, and indeed, Mr Stary as part of his submission took me to a number of authorities, but in particular the authority of the President in DPP v Malikovski [2010] VSCA 130. Those principles are well understood by the Court and are recognised by the President in R v Tokava [2006] VSCA 156. It is an exquisite difficulty of this Court dealing with a young person, wishing and trying to effect rehabilitation however, at the same time, the Court also has to look at other relevant factors.
33Mr Stary stressed the strong family support that you have, your work ethic, your good qualifications and the availability of employment. He stressed the fact that you had indeed, which I must say is a rare circumstance and often surprises me, proffered a written apology to all the victims in this matter. We then had a significant discussion in regard to Boulton of which I have earlier referred and essentially his submission in regard to your sentence was realistic in the sense that Mr Stary understood that there must be a term of imprisonment. Mr Stary said at paragraph 23 of his submission the following and confirmed it in oral submission: ‘Ordinarily it is accepted that an armed robbery of a soft target involving multiple offences would attract a term of imprisonment. The guideline judgment in Boulton however provides further discretion to the Court in imposing lengthy Correction Orders that have both a rehabilitative and a punitive component to them. The order can occur in circumstances where there is judicial monitoring in appropriate cases where the accused is required to serve additional imprisonment. This is particularly pertinent in the case of an offender who remains young, has good prospects of rehabilitation and is capable of redemption.’
Mr Stary submitted to the Court that I should indeed pass such a sentence upon you, which would be a structured sentence in combination with a Community Correction Order whereby you would get structured support for which there would be, as he said, supervision, monitoring and support as you progressed. Mr Stary stressed in particular that this criminality should be seen as a series of offences, which reflected your degeneration into the drug milieu, and that the circumstances demonstrate how ‘off the planet,’ if I use that term, you were, given that not only the seven serious offenses took place in that 11 days but the circumstances of those offences meant that it did not take long for you to be detected. Mr Stary also spoke to the summary matters, but I will not bother in that regard.
34Mr Grace, and indeed your family, can I say that this has not been an easy task for me. I have given this matter considerable thought. It is not an easy task in circumstances where one is dealing with a young offender who has a lot going for him, despite an addict background. However, unfortunately, having undertaken close consideration of all factors, I have found that I cannot accept the submission of Mr Stary. I accept the submission of the prosecutor and I do so after specifically considering the provisions of Section 5 and Sections 5(4B) and 5(4C) of the Sentencing Act 1991. I have concluded that these crimes are so serious, and the need for punishment, denunciation and general deterrence is such that despite the factors put to me by Mr Stary, the mitigatory factors brought about by your actions since you had been released from jail and the strong steps to rehabilitate, that it would be inappropriate to take the course suggested by Mr Stary.
35It must not, however, be forgotten that these seven serious crimes were committed three months from your June 2014 sentence, for robbery and recklessly causing injury, which sentence was suspended for 12 months. No doubt the Court felt on that occasion, given that you had pleaded guilty to a very serious offence and your age, that you would take advantage of the opportunity you had been given. Unfortunately it did not happen and as I have said, the breaching of that in the manner in which you have breached it, becomes itself an aggravating factor.
36I have, unfortunately, concluded that nothing short of a sentence of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment in this case. I have also concluded that a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, which of course could not exceed two years, would not satisfy the requirements of just punishment in this case. This of course is because of the importance, as the cases demonstrate, of general deterrence in sentencing for such crimes.
37Mr Grace, on the first charge of armed robbery you will be sentenced to a period of imprisonment of three years.
38On the second charge of armed robbery, a period of imprisonment of three years.
39On the third charge of armed robbery, a period of imprisonment of three and a half years. That is the matter involving the use of the single barrelled shotgun.
40On Charge 4, a period of imprisonment of three years.
41On Charge 5, a period of imprisonment of three years.
42On Charge 6, a period of imprisonment of three years.
43Again, on Charge 7, a period of imprisonment of three and a half years again involving the use of a Longarm.
44I will treat Charge 3 as the base sentence, that is, the sentence of three and a half years, I order that to be served cumulatively upon the sentence imposed in Charge 3, and each other is to be two months of the sentence imposed in regard to Charges 1, 2, 4, 5, 6 and 7, making a total cumulated sentence upon Charge 3 of one year, therefore making a total effective sentence of four and a half years imprisonment.
45As to the breach of the suspended sentence I order that you be sentenced to a period of imprisonment of one month for such breach and pursuant to those provisions that I have rehearsed, the imprisonment of three months, that was fully suspended, is hereby restored.
46As to the traffic matters, the drive while disqualified, I sentence you to a period of imprisonment of seven days and in regard to the use of the unregistered vehicle, a sentence of five penalty units. I will grant you a stay of three years in regard to that payment.
47That makes, therefore, a total effective sentence for all of your crimes of four and a half years jail. The period that you must serve before being eligible for parole, I have determined will be two years and six months.
48Pursuant to Section 18 of the Sentencing Act 1991, I order that 103 days you have served on remand be deemed as service of this sentence, and a declaration be lodged in this Court.
49Mr Grace, pursuant to Section 6AAA of the Sentencing Act 1991, it is necessary for me to tell you what would have been the sentence you would have received had you not pleaded guilty to these matters. Had you not pleaded guilty then the sentence I would have imposed would have been a period of six years with a minimum of three years and four months. The purpose of me telling you that is because it is a requirement of Parliament that you understand fully the worth of you pleading guilty.
50The end result of all of that is that you are sentenced to a total period of imprisonment of four and a half years with a minimum period to be served of two years and six months.
51Mr Grace, I am sure, with the support you have got after you get out of jail, and the impact this sentence will have, such will ensure that we will never see you again, hopefully. So good luck. Take the prisoner away, please.
‑ ‑ ‑
0
2
0