Director of Public Prosecutions v Green, Matthew John
[2012] VCC 1784
•15 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01048
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MATTHEW JOHN GREEN |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2012 | |
DATE OF SENTENCE: | 15 November 2012 | |
CASE MAY BE CITED AS: | DPP v Green, Matthew John | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1784 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – attempted armed robbery – assault – youthful offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Director (Plea) (Sentence) | Mr P J Pickering Ms C. Foot | Solicitor for the Office of Public Prosecution |
| For the Accused (Plea) (Sentence) | Mr J P McQuillan Mr D. Barrese | David Barrese & Associates |
HIS HONOUR:
1 Matthew John Green, you have pleaded guilty to:
· two charges of armed robbery, the maximum penalty for each being 25 years’ imprisonment;
· one charge of attempted armed robbery, the maximum penalty for which is 20 years’ imprisonment;
· one charge of handling stolen goods, the maximum penalty for which is 15 years’ imprisonment;
· three summary charges of unlawful assault, the maximum penalty for each being 15 penalty units, or three months’ imprisonment.
Circumstances of Offending
2 The facts are set forth in Exhibit A, the Summary of Prosecution Opening, which I adopt.
3 On 15 December 2011, in company with Jake Dellar (then seventeen years old), Jack Lockwood (then fifteen years of age) and your brother, Shane Green (then eighteen years of age), you went to the Clifton Hill Railway Station at about 10pm. You had been drinking heavily before the offending, and over the previous four days, had been taking a combination of methylamphetamine and Xanax. Such was the effect upon you of the drugs and alcohol that you had little, if any, recollection of the events which transpired.
4 You and Dellar sat either side of two victims and demanded money. Dellar produced a box cutter and pointed the blade at one of the victim’s neck. He produced a wallet, and you took $10 (Charge 1 – armed robbery).
5 The other victim ran away after Dellar had attempted to take his mobile telephone (Charge 2 – attempted armed robbery).
6 You and the co-offenders took a train to Flinders Street Station where you got onto a stationary train. Dellar walked up to an unknown passenger and punched him in the face. You did the same (Summary Charge 15 – unlawful assault). You left the train and boarded another train and sat amongst a group of young men and women. You and others demanded money, phones and cigarettes in an aggressive and intimidating manner. One of the victims asked you to leave, and he was pushed in the face by you and told to sit down (Summary Charge 20 – unlawful assault). One of the other co-offenders produced the box cutter and one of the victims handed over his phone (Charge 3 – armed robbery). Another of the victims attempted to placate the situation and he was told to sit down and shut up (Summary Charge 21 – unlawful assault).
7 When the train arrived at Parliament Station, you approached another victim on the platform and Dellar grabbed his mobile phone and pushed him in the face.
8 You were subsequently arrested at North Melbourne Station and you were found in possession of the mobile phone (Charge 4 – handling stolen goods).
9 You were taken to the police station and made a partial no comment record of interview. I accept that this was because you had little, if any, recollection of the events, given the effect upon you of drugs and alcohol. You admitted in the interview that it was possible that you were one of the offenders.
10 You entered a plea of guilty on 21 June 2012 and have been in custody since 18 May 2012 when bail was revoked. It is accepted by the prosecution that your plea was entered at the earliest practicable time, as there was some delay in identifying the persons involved and what had occurred, from the CCTV footage.
11 It is acknowledged by the prosecution that you did not come to the offending armed with the box cutter, nor did you wield it at any time on that evening.
Factors Personal to You
12 You were born on 12 October 1989, were twenty-two years of age at the time of offending and are now twenty-three.
13 A report of Dr Anthony Cidoni, psychiatrist, was tendered in your plea and sets out details of your background and personal circumstances.
14 Your parents separated when you were about thirteen. Both your father and grandmother have a history of bipolar disorder. You lived initially with your mother and then with your father from age nineteen. You had difficulties with school and failed to complete Year 9. You had significant behavioural problems at school. You commenced an apprenticeship as a roof tiler and completed it within four years. You obtained work as a roof tiler and have been largely in employment until October 2011.
15 You have abused alcohol since age sixteen, and have taken a range of drugs, including benzodiazepine, methylamphetamine, amphetamines, cannabis and ecstasy, all from a young age.
16 With the assistance of your father, and to your credit, you admitted yourself into a rehabilitation program with Youth Support Advocacy Service (YSAS) in April 2011. Mr McQuillan said that this was because you realised the effect of the drug and alcohol abuse upon you. You received treatment with that organisation until you turned twenty-two in October 2011, and left only because the program was unable to treat persons past that age. The program involved intervention and prevention strategies and behavioural counselling. The report of YSAS[1] noted the family history of mental health issues and your symptoms of anxiety, depression and auditory hallucinations. These issues were escalated in the context of substance abuse. You were said by YSAS to be motivated and engaged in the treatment and, according to your counsel, earnestly participated in the program. You acknowledged the link between your substance abuse and offending behaviour, along with peer group pressure.
[1]Exhibit 2
17 According to the report of Dr Cidoni, you have a longstanding history of anger, anxiety and compulsive conduct. You described to him feelings of paranoia, particularly when abusing drugs, and further that from an age as early seventeen, you have been hearing voices. This has continued through to the present time. Dr Cidoni noted that you had been admitted to an adolescent unit at the Austin Hospital for a period of two weeks when seventeen years of age. You have been treated, on occasions, with anti-psychotic medication. Dr Cidoni diagnosed you as suffering an obsessive compulsive disorder (a form of anxiety disorder) and thought that the psychotic symptoms may be an indication of schizophrenia. He suggested you needed a range of treatment, including anti-psychotic and anti-depressant medication, psycho therapy and cognitive behavioural therapy. He said you require private psychiatric treatment. He also noted that you had a poly-substance dependence problem.
18 Dr Cidoni said your offending was explained by your impulsive personality and substance abuse. He said you were likely to be susceptible to peer group behaviour. He said that because of your various psychological difficulties, you would struggle to cope while in custody.
19 After your attendance at YSAS, you were referred to Moreland Hall for further treatment as an adult. You relapsed into drug use in the gap between treatment at YSAS and Moreland Hall, and have not attended for any further rehabilitation or treatment.
20 Since May 2012, you have been held on remand. You have undertaken a number of programs, including anger management, drug and alcohol programs and work-related programs.[2] Urinalysis conducted in June and August 2012 shows no trace of illicit substances.
[2]Exhibit 3
21 According to a testimonial from your sister, Rebecca,[3] she referred to your difficult and fractured childhood and your battle against substance addiction. She described you as quiet and kind hearted. She noted that upon release from prison, you will be able to return to work as a roof tiler with your uncle’s construction company.
[3]Exhibit 5
22 You are facing another assault charge in the Broadmeadows Magistrates’ Court in relation to offending earlier the same evening.
Prior Offending
23 You have a significant history of prior offending, largely committed in company with other offenders. The offending involves cause injury, criminal damage, assault, theft and damage to property. All of the offences have been dealt with in the Magistrates’ Court, and you have never been incarcerated, although served a period under an Intensive Corrections Order. In March 2011 you failed to comply with an undertaking, and in November 2011 breached a Community Based Order. This offending was a further breach of the Community Based Order. Your time in prison since May this year is the first time you have been incarcerated.
Parity
24 Two of your co-offenders were under eighteen years of age at the time offending and were dealt with in the Children’s Court. Different sentencing considerations apply in that Court. On 10 May 2012, I sentenced Jake Dellar, your other principal co-offender. He received a total effective sentence of three years and four months' imprisonment, with a non-parole period of twenty months.
25 There are both similar and different sentencing considerations with Mr Dellar. You both have significant mental health issues, and abuse of alcohol and drugs. Your counsel submitted that Mr Dellar’s offending was more serious in that he was the one who came to the railway stations armed with a box cutter, and wielded it to threaten the victims. He further submitted, Mr Dellar’s prior offending was more significant; in particular, he had a prior offence for armed robbery. He was more regularly in breach of probation and other orders. He had been sentenced to Youth Justice Centre detention. On the other hand, you were four years older at the time, and not a “young offender” as defined by the Sentencing Act. It is further of note that you have had a more stable employment history than Mr Dellar.
Sentencing Considerations
26 The purposes for which a Court may impose a sentence are:
·punishment – to an extent and in a manner which is just in all the circumstances;
·deterrence, both specific and general;
·rehabilitation;
·denunciation and/or protection of the community.
27 In sentencing you, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
28 You have pleaded guilty at what I accept was the earliest practicable time and are entitled to have that fact taken into account in your favour. You have avoided the cost of a trial and spared the witnesses the ordeal of giving evidence.
29 There is no compelling evidence that you have shown remorse. However, I accept that at the time of your initial interview with the police, you did accept as a possibility that you were the person depicted in the CCTV video. Your plea of guilty evidences some remorse.
30 You are a youthful offender and therefore rehabilitation is still an important sentencing consideration. I am impressed by your solid work history since leaving school and the fact that you apparently have employment available to you when you leave prison. Your chances of rehabilitation will be considerably enhanced if you are able to obtain treatment for your mental health issues and assistance in breaking the cycle of alcohol and substance abuse.
31 I accept, in accordance with the report of Dr Cidoni, that the time already spent in prison, and any future time in prison, will be more difficult for you than a person in reasonable health, given the issues raised in that doctor’s report.
32 As with Mr Dellar, your offending was particularly serious. It occurred in public places, namely railway stations and carriages and involved violence and threats of violence with the use of a box cutter. I accept that you were not the person who came armed with that implement, nor wielded it. Although I am not provided with any Victim Impact Statements, I accept that all of the victims were subjected to terrifying and violent conduct by you and your co-offenders. As with Mr Dellar, you have a significant criminal history, although on all of the offences, you were dealt with in the Magistrates’ Court and have not before been in gaol. In all these circumstances, the sentencing considerations of general and specific deterrence and protection of the public are important.
33 The sentencing principle of parity is important. In balancing the similarities and differences between the sentencing considerations in Mr Dellar’s case, and in your case, I have concluded that there is very little difference. On the one hand, the role he played was marginally more serious, and he has more extensive prior criminal offending. On the other, you were four years older than he, and older again than the other offenders.
34 The prospects of rehabilitation and breaking the cycle of violence and drug and alcohol abuse rests very much in your hands. You have the prospect of secure employment and, with treatment, the prospect of some remission from the mental health problems which have plagued your over the last ten years. If you remain free of drug and alcohol abuse, and receive appropriate treatment, then there is the prospect of rehabilitation. Whether this prospect is realistic remains to be seen.
Sentence to be Imposed
35 Taking into account all of the matters to which I have referred, I impose the following sentence.
36 On Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of two years.
37 On Charge 2, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of one year.
38 On Charge 3, armed robbery, you are convicted and sentenced to a term of imprisonment of two years.
39 On Charge 4, handling stolen goods, you are convicted and sentenced to a term of imprisonment of one month.
40 On summary Charge 15, unlawful assault, and summary Charge 20, unlawful assault you are convicted and sentenced to a term of imprisonment of two months on each.
41 On summary Charge 21, unlawful assault, you are convicted and sentenced to a term of imprisonment of one month.
42 In determining whether to order any period of cumulation, and if so how much, I take into account that although the charges occurred on the same evening, they were committed on different victims and at different places. Such is the gravity of offending that total concurrency would fail to do justice. I thus consider it appropriate to order some form of cumulation. I direct that one year of the sentence imposed in respect of Charge 3, one month of the sentence imposed in respect of summary Charge 15, and one month in respect of summary Charge 20, be served cumulatively upon each other and cumulatively upon Charge 1, the base charge. That results in a total effective sentence of three years and two months' imprisonment.
43 I am of the view that you will benefit by the supervision provided during the course of parole. That parole will enhance your prospects of rehabilitation and treatment. I direct that you serve a period of twenty months' imprisonment before being eligible for parole.
Pre-sentence Detention
44 Pursuant to ss18(4) of the Sentencing Act 1991, I declare that the period of 181 days is to be reckoned as a period of imprisonment already served under the sentence, and I direct that this declaration and its details be noted in the records of the Court.
Section 6AAA of the Sentencing Act 1991
45 Under s6AAA of the Sentencing Act 1991, I state that but for your pleas of guilty, I would have imposed a total effective sentence of four years' imprisonment with a non-parole period of thirty months.
46 Yes, thank you Mr Green, you can have a seat.
47 Anything further?
48 MR BARRESE: No, Your Honour. Just a query, my discussion with Mr McQuillan, Your Honour, obviously Mr Green has matters at the Magistrates' Court tomorrow.
49 HIS HONOUR: I'm prepared to provide you with a copy of my sentencing comments.
50 MR BARRESE: Thank you.
51 HIS HONOUR: Which I will ask you to pass onto the magistrate as being unrevised but I've read directly from them and I can't see - - -
52 MR BARRESE: No.
53 HIS HONOUR: - - - aside from the discussion we're now having that there will be any change to them.
54 MR BARRESE: Yes. I appreciate that, Your Honour, thank you, it will be most helpful for the magistrate.
55 HIS HONOUR: Yes, and you'll also be provided with a copy of the order.
56 MR BARRESE: As Your Honour pleases.
57 HIS HONOUR: Yes, anything further?
58 MS FOOT: No, Your Honour.
59 HIS HONOUR: Thank you for your attendance. Yes, to the prison officer, will you kindly allow Mr Green a few moments with his lawyers and with his family before taking him into custody, thank you.
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