Director of Public Prosecutions v Gray
[2016] VCC 911
•1 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON GRAY |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 May 2016 at Bendigo. |
| DATE OF SENTENCE: | 1 July 2016 |
| CASE MAY BE CITED AS: | DPP v Gray |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 911 |
REASONS FOR SENTENCE
---Subject: Attempted Armed Robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Adjourned Undertaking. Justice Plan.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Rooney | |
| For the Accused | Ms J. Swiney |
HIS HONOUR:
1Tyson Dion Gray, on 25 May you pleaded guilty in the Bendigo County Court to one charge of attempted armed robbery, for which the maximum penalty is 20 years' imprisonment.
2You also pleaded guilty to one summary charge of using a drug of dependence, being methylamphetamine and GHB. The maximum penalty for this offence is a fine of 30 penalty units, or imprisonment for one (1) year or both.
3At the time that you were arraigned you admitted prior convictions, which I will discuss a little later.
4The circumstances of your offending are contained in a written prosecution opening that was tendered in evidence and marked as Exhibit A on the plea. Your counsel Mr Patton agreed that the prosecution opening is accurate and forms a proper basis upon which I can proceed to pass sentence upon you. The opening was read in open court by the learned prosecutor Mr Cordy. It is therefore not necessary that I refer to it in detail and I do so only in a summary way.
5On 2 January 2016 at about 9 pm you and, your co-accused Robert May, entered the United service station on the Marong Road in Bendigo. May was driving a motor vehicle which he attempted to fill with petrol. As he was doing so, the attendant stopped the pump, recognising him as the perpetrator of an earlier petrol drive off. The attendant stopped the pump and asked May to pre-pay for the fuel. You and your co-accused May then entered the store and verbally abused the attendant and demanded that he hand over cash. You and May then left the petrol station and returned to the car, where May retrieved a knife from the boot and gave it to you. You then re-entered the service station brandishing the knife and repeated demands for cash. When the attendant fled to a safe place you and May left the scene.
6May has since pleaded guilty to a number of charges relating to other matters. Relevantly, he pleaded guilty to attempted armed robbery and I have this day sentenced him to a term of imprisonment on this charge of nine months. May is older than you and I think influenced you and encouraged you in this offending, arming you with the knife as he did. Both of you were drug and alcohol affected at the time of the offence.
7When you were interviewed by police, you told police that you had no knowledge of the attempted armed robbery and you were unsure as to why you were in police custody. You could not remember what had happened. You told police you had consumed a concoction of the drug Ice and GHB and alcohol. This is the basis of the summary charge.
8The attempted armed robbery is also serious offending. The service station attendant was alone and unarmed. He was a soft target for you and your co-offender May. Having said that, I accept that this offending was towards the lower end of the scale. It was unplanned and unsophisticated. It was opportunistic. There was no disguise used and your movements were recorded on CCTV. You were bound to be caught. You gained nothing and the victim was able to retreat to a safe place, fortunately for you and May. Nevertheless, the sentence for the charge of attempted armed robbery needs to reflect proper application of the principle of general deterrence. The public is sick and tired of soft targets being the subject of armed robberies by drug affected criminals.
9You are a young man of Aboriginal decent and I treat you as a youthful offender. Unlike May, you have a limited criminal history from two previous court appearances before the Bendigo Magistrates’ Court in 2014. You were given a Community Corrections order with a Justice Plan in December 2014 and you successfully completed that order. Importantly, your first offence was not until you were aged around 23 in 2014.
10The sentencing of you is a very different sentencing task than was the task of sentencing Mr May.
11Like May, you pleaded guilty at committal mention. By your plea of guilty, you have saved the time and cost of a trial and for witnesses to be called. For this you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass. Further, I treat your plea as a sign of genuine remorse by you for this offending.
12I was provided with a very helpful outline of submissions by your counsel Mr Patton and a chronology of significant events in your life. There can be little doubt that your life has been a troubled and deprived one. You were removed from your mother’s care in 1997 and placed in the care of your paternal grandmother. You have remained in your grandmother’s care since, with a number of interventions from Department of Human Services. Your sister also lived with you and your grandmother, but you are estranged from four other siblings.
13There is a familial history of mental health issues and severe substance abuse, affecting both your maternal and paternal sides. I was told that your father suffers an array of mental health issues and substance abuse issues. Your mother is a drug addict.
14You attended Kalianna Special School until the age of 15. This school catered for students with intellectual disabilities. After leaving school you commenced courses in landscaping, but were unable to complete these for one reason or another. You have never held paid employment. You have had alcohol abuse issues since you were aged 12 years and by 14 you were consuming a slab of beer every couple of days. There has also been intermittent abuse of GHB and methylamphetamine, which reached a peak shortly prior to this offending.
15In 2014 and 2015 you were admitted to psychiatric facilities on a number of occasions, primarily because of drug and alcohol abuse. I was told and accept that when this offending occurred, you were affected by the drug GHB and other substances. In the past, you have been admitted as an involuntary patient to psychiatric facilities due to conduct by you whilst suffering the effects of substance abuse. At the time of your plea, you had been in custody on presentence detention for 83 days and even after one month in custody, you were reporting having suffered hallucinations and other adverse psychiatric symptoms. You have now served 180 days pre-sentence detention.
16When released from custody you plan to again return to live with your paternal grandmother.
17I admitted into evidence a medical report from Dr Sharon Hoch of the Bendigo and district Aboriginal cooperative. She confirms that any of offending that you have engaged in is directly related to substance abuse issues. She confirms that she has been treating you for this and in her opinion incarceration for any length would be detrimental to your mental health and rehabilitation outcomes. I also admitted into evidence a psychiatric report from Dr Leon Turnbull who assessed you on 5 April 2016. He confirms your dependence on alcohol since around the age of 14 and, in 2015 you became dependent on the drug Ice. He also confirms that around the time of offending you were both alcohol and Ice dependent.
18You are registered with an established intellectual disability and your development of an alcohol and drug dependency has not assisted you because of that. Dr Turnbull diagnosed that you suffer from intermittent drug induced psychosis and he notes that you have now recognised that you must remain abstinent of alcohol and drugs.
19In 1998 a cognitive assessment of you was conducted, which shows that your general level of intellectual functioning is towards the lower end of the mildly intellectually disabled range. You have extremely poor literary skills and you require support to read and write and you have difficulty budgeting money.
20I adjourned the sentence for the preparation of a Justice Plan for you. Regrettably that was not prepared until 20 June and so you have spent longer in custody than I would have liked. The accompanying assessment confirms the matters that I have already set out above as to your cognitive assessment and your level of intellectual functioning. The report concludes with the following two paragraphs:
21“Information provided and discussions with Mr Gray would indicate that it is his long-term goal to be free of alcohol and drugs and he states that he is committed to undertake further rehabilitation and therapeutic programs to achieve this. However, it appears that Mr Gray will require significant support and intervention to achieve his goals.
22Mr Gray may also experience significant difficulty managing the demands of a community corrections order with an associated Justice Plan becoming quickly overwhelmed with numerous appointments. It would appear that Mr Gray would benefit from transitioning back to his community via a culturally appropriate residential program that would allow him to develop and consolidate lifestyle changes before he has the additional pressures of complying with statutory obligations.”
23A Justice Plan prepared recommends that you actively engage and participate in residential or other rehabilitation and treatment programs as directed and that you actively engage with financial counselling and budgeting support as directed by disability client services.
24Offending of this kind in normal circumstances results in a sentence of imprisonment, the length of which reflects general and specific deterrence. Given your level of intellectual functioning, I am of the view that this determines the kind of sentence I must impose. There can be no doubt your best prospects for rehabilitation lie outside of prison. Mr Patton urged me to impose a disposition in the form of a Community Corrections Order with a condition that you comply with the Justice Plan. Mr Cordy did not oppose that course on the evidence.
25In passing sentence, I have had regard to the report prepared in relation to you for the Justice Plan. I will not impose a Community Corrections Order on this occasion but will, as part of the sentence, make it a condition that you comply with the Justice Plan dated 15 June 2015.
26In sentencing you on the attempted armed robbery charge I have taken the view that as you are much younger than Mr May and with fewer prior convictions the sentence imposed does not have to reflect specific deterrence in your case. Also, I think, he influenced you to commit the offence.
27On the charge of attempted armed robbery you are convicted and sentenced to a term of imprisonment of six (6) months.
28On the summary charge of use a drug of dependence, pursuant to s. 75 of the Sentencing Act 1991, I adjourn the further hearing of that charge (without conviction) for a period of two (2) years upon you undertaking to comply with the following conditions:
291. That you will attend the court if called upon to do so on the adjourned date;
302. That you will be of good behaviour during the time of the adjournment, and;
313. That you comply with the conditions of the Justice Plan dated 15 June 2016 prepared by the Department of Health and Human Services.
32I declare that there has been 180 days pre-sentence detention under the sentences passed this day and I direct that 180 days be reckoned as having been already served and entered into the records of the court and be deducted administratively.
33For the purposes of s. 6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of 18 months' imprisonment and I would have fixed a non-parole period of 15 months.
34Now Mr Gray, what I have done is, imposed a term of imprisonment on the attempted armed robbery charge of six months. Now, you have already served that and you would probably be released today or tomorrow.
35OFFENDER: Yes.
36HIS HONOUR: You understand?
37OFFENDER: Yes.
38HIS HONOUR: You will immediately try to make contact with your grandmother - - -
39OFFENDER: Yes.
40HIS HONOUR: - - - and make arrangements to go straight back home. Do you understand?
41OFFENDER: Yes.
42HIS HONOUR: Now, on the possession of the drugs charge, I am going to adjourn that for two years. You will have to enter into the terms of an undertaking to be of good behaviour, to attend the court again if called upon to do so and to comply with the conditions of the Justice Plan.
43OFFENDER: Yes.
44HIS HONOUR: Do you understand all of that?
45OFFENDER: Yes, I do understand.
46HIS HONOUR: Are you prepared to enter into such an undertaking?
47OFFENDER: Yes.
48HIS HONOUR: Ms Swiney - - -
49MS SWINEY: Yes Your Honour.
50HIS HONOUR: - - - you appreciate what I have done?
51MS SWINEY: Yes Your Honour.
52HIS HONOUR: I have not imposed a community corrections order, acting on the recommendation of the person who prepared the Justice Plan, that it might be setting the bar too high, so to speak.
53MS SWINEY: Yes Your Honour.
54HIS HONOUR: So I have gone the other path anticipated by s.80 of the Sentencing Act in this case. Do you understand?
55MS SWINEY: Yes indeed Your Honour.
56HIS HONOUR: Now, can you explain to your client again?
57MS SWINEY: Yes Your Honour, I will.
58HIS HONOUR: He will need to sign the undertaking, which my associate has prepared.
59MS SWINEY: I might just, if I may, do that one - - -
60HIS HONOUR: Yes, you can approach Mr Gray.
61MS SWINEY: Thank you.
62HIS HONOUR: There is a s.464 application, is there?
63MR ROONEY: Yes Your Honour.
64HIS HONOUR: And is this for one not in custody?
65MR ROONEY: Your Honour, I was not in attendance on the last occasion. I am not sure which one was provided.
66MS SWINEY: I might just - if I may get some instructions in relation to that application too Your Honour?
67HIS HONOUR: Yes. Approach the prisoner.
68MS SWINEY: Thank you. That 464ZF application, Your Honour, is by consent.
69HIS HONOUR: Yes.
70MR ROONEY: Your Honour, there is one more matter. As I understand it, Mr Gray also pleaded to an additional summary offence of committing an indictable offence whilst on bail.
71HIS HONOUR: No he did not.
72MR ROONEY: All right, well, I have got an opening and a charge, but if - - -
73HIS HONOUR: I have a very clear recollection of it. It was withdrawn.
74MS SWINEY: Yes and I have got those notes, Your Honour, on my back sheet from Mr Patton.
75MR ROONEY: My apologies, Your Honour. I was acting on - - -
76HIS HONOUR: That is all right. Now Mr Gray, there are two things. First of all, you must comply with the undertaking to be of good behaviour. You understand?
77OFFENDER: Yes.
78HIS HONOUR: That means that you must not commit any offence in the next two years. If you do, you will be brought back before me. Do you understand?
79OFFENDER: Yes, I do understand.
80HIS HONOUR: Very good. That is the first thing. The second thing is that I have been asked to make what is called a forensic sample order - - -
81OFFENDER: Yes.
82HIS HONOUR: - - - and because of the seriousness of your offending and because the order was by consent and because I think it is in the public interest, I have signed that order, which means that you must report to the Bendigo Police Station within four weeks - - -
83OFFENDER: Yes.
84HIS HONOUR: - - - and when you go there, they will take a sample from you, from your mouth, from the inside of your mouth. Do you understand?
85OFFENDER: Yes.
86HIS HONOUR: Now you must do that. Do you understand that?
87OFFENDER: Yes I understand.
88HIS HONOUR: Very well and Ms Swiney will no doubt explain it to you. Now I have made all those orders on the basis that you will be released from custody either later today or at the latest, tomorrow. Do you understand?
89OFFENDER: Yes.
90HIS HONOUR: So please contact your grandmother and make arrangements so that you have got somewhere to go. I do not want you wandering around the streets with nowhere to go. Do you understand?
91OFFENDER: Yes.
92HIS HONOUR: Very well. I wish you luck. Could you remove Mr Gray please? Very well. I will just stand down whilst the next matter is - - -
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