Director of Public Prosecutions v Greene

[2017] VCC 1590

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01003
CR-17-01101
CR-17-02110

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW GREENE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 12 October 2017
DATE OF SENTENCE:	24 October 2017
CASE MAY BE CITED AS:	DPP v GREENE
MEDIUM NEUTRAL CITATION:	[2017] VCC 1590

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: contravention CCO -   presently serving sentence for further offending -  
CR-17-01101 –  CCTV footage chilling display of intimidation of victim of armed robbery; CR-17-02110 victim surrounded by large group – Defendant holding box cutter knife to victim;  Defendant 23 years old - complex background of  disability, dysfunction, suffers  from Tourette Syndrome -    illicit drug use and alcohol abuse -  real risk of  becoming  institutionalised
Sentence: CR-15-01003:  attempted armed robbery.  CCO cancelled resentenced to 2 years imprisonment;  CR-17-01101:  armed robbery – 3 years  2 charges theft – 12 months each; CR-17-02110 attempted armed robbery -  2 years.  Total effective sentence 4 years with non parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms D. Karamicov	OPP
For the Accused	Mr P. Casey	Ann Valos Criminal Law

HER HONOUR:

1Matthew Greene, recently you have pleaded guilty to one charge of armed robbery and two charges of theft.  These charges are case number
CR-17-01101.  You have also pleaded guilty to a charge of failing to comply with a Community Correction Order.  That is case number CR-15-01003.

2On 7 September 2015, I sentenced you to nine months imprisonment, combined with a Community Correction Order of three years, to expire on
18 December 2018, for one charge of attempted armed robbery.  The Community Correction Order required you to perform unpaid community work and to undergo treatment.  There was also the charge of possessing ammunition without a licence for which you were fined $200.  You have also pleaded guilty today to a charge of attempted armed robbery, which is case number CR-17-02110.  This occurred on 19 June 2016.  The offences of armed robbery, attempted armed robbery and theft are all breaches of the Community Correction Order.  I shall deal first with the details of your non-compliance and then turn to the other charges.

3You were released from prison on 15 December 2015, and the Community Correction Order then commenced.  Your non-compliance began on
24 December of that year, and there followed numerous further offending.  The details of your non-compliance are set out in the schedule to the charge of failing to comply, filed in the Magistrates' Court on 5 September 2016.  They are also set out in a helpful chronology prepared by the prosecution, in a document which includes the details of your offending, comprising part of the compliance failures.  They include the four charges on two separate indictments, to which you have pleaded guilty, and for which I am sentencing you today.

4On 17 March 2016, you committed offences of unlawful assault and marking graffiti on property.  On 19 March 2016, you committed multiple charges of theft and dishonestly assisting removal of goods.  On 15 May 2016, you committed two charges of intentionally damaging property.  On 19 May 2016, you committed attempted armed robbery and were also charged with committing an indictable offence whilst on bail.  On 19 June 2016, you committed the attempted armed robbery to which you have now pleaded guilty.  That matter was only recently resolved. 

5Continuing with the breaching offences, on 15 August 2016, you failed to answer bail and on 18 November that year, you contravened a bail condition.  On 23 January 2017, you committed criminal damage, assault and were also charged with committing an indictable offence whilst on bail.  On 24 January 2017, as part of a consolidation of charges, you were sentenced in the Magistrates' Court to an aggregate sentence of four months imprisonment.  As you had already served 85 days by way of pre-sentence detention, you were released on 27 February 2017.  A few days later, you committed the armed robbery and thefts to which you have now pleaded guilty.

6You were arrested and remanded in custody on 2 March, and on 30 May you were sentenced to six months imprisonment for other unrelated matters, which sentence you are still serving now.  Therefore, your time in custody between
2 March and 30 May 2017, a period of 90 days, is referrable to the current charges as pre-sentence detention.

7In the early afternoon of 1 March 2017, you went to Richmond Railway Station with three other men.  When a train pulled in and the passengers disembarked and left the platform, you and your friends remained the only people there.  About two minutes later, eighteen year old Sebastian Foehn walked past you.  You yelled out to him and he stopped a few metres past your group.  You left the group and approached him in a friendly manner, holding out your hand to shake his.

8You asked him whether he painted and whether he wished to join you in stealing paint.  He refused and said he had to be elsewhere.  You asked where he was going and he replied that he was going to the Pakenham line.  As he walked away, you looked at his shoes and said "Nice kicks.  Kick them over here, I'll give you mine".  The victim again refused and you said "I've got a knife, I'll cut your face.  I'm not afraid to go back to gaol".

9You put your arm around his shoulder and pulled him towards you, demanding "Give me your shoes, I'll give you $20 as well".  You then produced a yellow box cutter from your right trouser pocket, extended the blade and pointed it at the victim.  He removed his shoes and kicked them towards you, fearing he would be stabbed.  You gave him a $20 note, but you then took it back from him saying, "I know your tag, if you lag, I will cross it out and write 'Dog'".

10The victim reported the matter to the station master.  He was scared, shaken and upset, as his shoes were very new and valued at $249.  The incident was captured on CCTV and the disc was played during the plea hearing.  It is a chilling display of intimidation and threat to a young man, who said in his statement that he felt panicked and shocked.  It is clear from the footage that there was no one to whom he could call for help and he had no means of escaping from you. 

11The next day, 2 March, you went to a Kathmandu store at the Galleria in Elizabeth Street in the city.  The store manager saw you acting suspiciously, scanning a rack of men's rain jackets and constantly checking on the location of the manager.  He attended to some customers and then turned to see you leaving the store, with two large dark green raincoats, still on their hangers.

12A woman standing on the nearby tram stop saw you carrying the raincoats and deposit their hangers in a rubbish bin, then board the same tram as her, with another man who joined you.  She telephoned the Kathmandu store and the manager confirmed the theft.  She saw you and the other man wearing the coats and heard you say "I just racked some Kathmandu jackets".

13The two of you alighted from the tram and the woman took photos of you as you walked away.  The same day, at 5.15 pm, you entered a Samsung store at Melbourne Central Shopping Centre and were seen by a salesman approaching the display tables at the front of the store.  You were still wearing the stolen jacket.  You selected a Samsung S7 Edge mobile phone off the table and from your right trouser pocket, produced a yellow box cutter, which you used to cut the phone free of the security cable that secured it to the display table.  You walked from the store and then ran away.  This incident was also captured on CCTV.  The phone was valued at $1,249 and was returned to the store by the police with its SIM card missing and which the owners replaced at a cost of $44. 

14Police received a report that you had produced a knife to two women near the State Library and they located you in Latrobe Street.  The police observed you walking at a fast pace among pedestrians, with your right hand in your pocket.  When the police announced their presence, you ran from them and they saw your hand moving towards the right hand pocket of your jacket.  They used a Taser to cause you to surrender and they found the box cutter in your right hand jacket pocket.

15You were arrested and remanded in custody until you were sentenced for other matters on 30 May, as described earlier.  On 31 May, at a committal case conference, you indicated that you would plead guilty to these charges.  The prosecution has conceded that that is the equivalent of entering a plea at the earliest possible opportunity.

16I turn now to the 2016 charge of attempted armed robbery.  You committed this offence in Flinders Street near the railway station in the early hours of 19 June 2016.  You were with a group of teenagers and other young men, at least some of whom it appears, were not known to you.

17Some hours earlier during the evening of 18 June, the victim, Tyler-Blake Damrow aged 15, had been at a party at north Fitzroy where he encountered a former friend of his Jake Kay.  Kay became abusive towards Damrow, who left the party and travelled by train to the city.  He then went to McDonalds in Swanston Street and remained there with some friends.

18Jake Kay arrived there with two of his friends and was again verbally abusive towards Damrow and Damrow had water poured over him.  Kay and his friends were removed by security and when Damrow left McDonalds, Kay confronted him and punched him five times.  Kay's friends pulled him away and the group left and headed towards Flinders Street Station, where they met with a larger group of people, which included you.

19A few minutes later, Damrow walked away alone, heading west along Flinders Street.  You and the large group followed him, with you positioned at the front, wearing a distinctive blue jacket which was later identified from CCTV footage.  Your group caught up with Damrow and surrounded him.  This was in Flinders Street near the entrance to one of the station platforms.

20One of the group asked him if he was carrying drugs, to which he replied that he was not.  He tried to walk away, but was pushed against a wall.  One of the members of the group said "You're going to stay and talk to us".  You then produced a yellow handled box cutter from your pocket and held it against the victim's stomach, holding the blade retracted, but with your thumb on the release button.

21You aggressively demanded the victim's phone, but he refused to provide it, placing it in his own pocket.  You repeated your demand several times, but the victim resisted.  You moved away from the victim and other people from the group approached and stole items from his backpack.  The victim walked away, but the group followed and pushed, punched and head butted him.  You left the group, joined by two others, and the group disbursed.  The victim caught a train to Burnley Station where he reported the matter to officers and police were called.

22This incident was also captured on CCTV and you were able to be identified as the person wearing the distinctive blue jacket.  You were arrested on 2 January 2017 and when interviewed, you identified yourself on the footage.  You said you could not remember any of the specific allegations and you did not know Jake Kay. 

23On 18 October 2017, at a contested committal hearing, you indicated you would plead guilty.  You are entitled to a discount on your sentence for this early plea and for consequently having avoided a trial; neither the victim nor the other witnesses were cross-examined at the committal hearing.  They were spared that by your decision to plead guilty.  Jake Kay aged 15, and with no prior convictions, pleaded guilty to attempted robbery and was sentenced to a good behaviour bond in the Children's Court.  Because he is a child, the principle of parity does not arise in sentencing you.

24Turning now to some sentencing considerations.  Whilst in custody, you have been the victim of three assaults in prison and you were sent to Ararat Prison for your protection, but were unhappy there in the company of sex offender prisoners and you misbehaved, resulting in three months isolation.  You are now in Port Phillip Prison in protection and therefore denied access to programs.  According to Mr Casey, who appeared on your behalf on the plea, the indications are that you have trouble getting on with other prisoners, just as you have trouble living as a member of the community, when you are at liberty.

25When I sentenced you in 2015, I was provided with several psychological reports and information about your background.  I referred to that material in my sentencing remarks and for completeness I shall repeat some of it here, as much of it remains current. 

26I said then that your background presents a complex picture of disability and dysfunction.  You have always suffered from Tourette Syndrome, but as you grew older, it became more easily controlled with medication.  You struggled at school where you were bullied and you tendered to lash out physically, when trying to fit in with your peers, lacking the social skills to do so.  There were concerns that you were lying and stealing and that you did not understand the consequences of this behaviour.

27Your verbal intellectual abilities have been assessed as low, meaning you have difficulty processing verbal information given to you.  You have used various illicit drugs from an early age, including methamphetamines, but not ice, and you have abused alcohol at times.  Regular incarceration has resulted in periods of abstinence.

28You were homeless when released from prison in February 2017, being unable to return to your parents' home at that time.  They have now agreed to have you live with them again next time you are released and your mother has told you that she will manage your medication.  Apparently, for reasons unknown, you are presently being denied medication by the prison authorities for Tourette Syndrome. 

29As I said when sentencing you in 2015, over the years you were investigated by a wide range of professionals and had been diagnosed with many different conditions, including depression and anxiety, obsessive compulsive disorder, post-traumatic stress disorder and oppositional defiance disorder.  The latter condition seems still to be playing a role in your life, demonstrated by a continuing disregard for authority and a tendency to rebel.

30For reasons which are perhaps unclear, you have had no success in adequately conforming with the requirements of a Community Correction Order.  There is no alternative but to sentence you to a term of imprisonment.  The offending is serious and your prospects for rehabilitation are not encouraging, despite some possible recent progress.

31With that said, you seemed to have gained some insight into your offending and your limitations in terms of compliance.  Although the most recent report from
Ms Maynard is several months old, dated 7 July 2017, I accept that you have been speaking regularly with her by telephone from prison and that you have established a good rapport with her, which suggests some increased maturity and recognition of the futility of continuing to offend.

32I am required to acknowledge that general deterrence is regarded as an important factor in sentencing those who offend in this way, and certainly specific deterrence, that is, deterring you from offending again in future, is clearly important.  In your case, the community is entitled to expect some protection from your offending and the sentence I impose should reflect all these concerns.

33You have in effect  become a menace in the community, putting your victims in real fear of being hurt and taking property with impunity.  In applying limbs 5 and 6 of the decision in Verdins v R[1], I take into account the difficulties in your experience of prison, which seem related to the longstanding and perhaps entrenched problems you have in conforming with a non-offending lifestyle.

[1] [2007] VSCA 102

34I take into account that you are still a young man at the age of 23 and the risk of your becoming institutionalised is a real one.  However, there is presently no real prospect that you can fulfil the requirements of a community order and so as I said, imprisonment is the only option available.

35The maximum penalty for armed robbery is 25 years imprisonment and for theft it is 10 years.  I will order that the Community Correction Order be cancelled and I will be re-sentencing you for attempted armed robbery, for which you received the Community Correction Order in 2015 and which you have breached.  The maximum penalty for attempted armed robbery is 20 years imprisonment. I will also be sentencing you today for the charge of attempted armed robbery to which you have recently pleaded guilty, that which you committed in June 2016. 

36I have taken into account the report from Corrections prepared at the time of the breach proceedings which records that you only completed three of the 100 hours of community work you were ordered to perform and that your attendance in every other way was very unsatisfactory.

37I sentence you to the following terms of imprisonment:

Indictment H10598232 CR-17-01101 - charge 1, armed robbery, three years imprisonment; for each of charges 2 and 3, the charges of theft, twelve months. 

In re-sentencing you on indictment F10939478 CR-15-01003 for the charge of attempted armed robbery, I sentence you to two years imprisonment.   

Indictment H111469807 CR-17-02110 for the charge of attempted armed robbery which occurred in June 2016, I sentence you to two years imprisonment.

38The sentence for Charge 1 on CR-17-01101, is the base sentence for purposes of cumulation.  I order that three months of each of the sentences, for each of the other charges, be served in cumulation upon the base sentence.  This results in a total effective sentence of four years. 

39I order that you serve a minimum period of three years before being eligible for parole.  If you are released on parole, you will have the advantage of support and assistance and by that time, the possibility of increased maturity will increase your prospects for completing your parole obligations.

40In sentencing you, I have taken into account the principle of totality, which is reflected in the modest periods of cumulation and the overall sentence.  It takes into account that you are already serving a sentence and that today, you are being sentenced for several different episodes of offending. 

41As I have said earlier, you have spent 90 days in pre-sentence detention.  I declare that to be time already served and I shall cause that to be noted on the court record. 

42As of today, your sentence will be served concurrently with the remainder of the sentence now being served, that which was imposed on 30 May. 

43If you had pleaded not guilty to these charges, I would have sentenced you to five years imprisonment, with a non-parole period of four years. 

44The prosecution applied for a disposal order for some items, but I did not record whether there was consent to that Mr Casey.  Do you consent?

45MR CASEY:  Yes there is, Your Honour.

46HER HONOUR:  So I make that order.  Are there any other matters?

47MR CASEY:  No, Your Honour.

48MS KARAMIVOC:  Your Honour, I'm just getting my instructor to check whether there were any other orders.

49HER HONOUR:  Certainly.  Be seated for the moment, Mr Greene.

50MS KARAMIVOC:  There's no other order, Your Honour.

51HER HONOUR:  No other orders?

52MS KARAMIVOC:  Just the disposal order.

53HER HONOUR:  Very well, thank you.

54MS KARAMIVOC:  Thank you.

55HER HONOUR:  Mr Greene, you may go now with the officer.  Adjourn the court please Mr Percy.

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