Director of Public Prosecutions v Greene

[2015] VCC 1254

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01003

DIRECTOR OF PUBLIC PROSECUTIONS

V

MATTHEW GREENE

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August, 2 September 2015
DATE OF SENTENCE:	7 September 2015
CASE MAY BE CITED AS:	DPP v Greene
MEDIUM NEUTRAL CITATION:	[2015] VCC 1254

REASONS FOR SENTENCE
---

Subject: Criminal law

Catchwords: Pleaded guilty to one charge attempted armed robbery, one summary charge possessing ammunition whilst not having licence – with two co-offenders approached 6 teenagers; offender threatened one with knife – pushing and shoving one complainant –
21 year-old offender has complex background of disability and dysfunction – suffers from Tourette’s syndrome -  borderline verbal intelligence score PTSD –drug and alcohol abuse – strong family support  -174 days pre sentence detention - long juvenile criminal history.

Cases Cited: Graeski v R[2015] VSCA 229 at para 42 - 45

Sentence: nine months imprisonment with 3 year Community Corrections Order with treatment, hours, curfew and judicial monitoring conditions.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Boston Mr A. Godleman (for sentence)	OPP
For the Accused	Ms N Karapangiotidis Mr J Lowey (for sentence)	Ann Valos & Associates

HER HONOUR:

1Matthew Greene, you have pleaded guilty to one charge of attempted armed robbery and one summary charge of possessing cartridge ammunition whilst not the holder of a licence or permit.  The maximum penalty for attempted armed robbery is 20 years' imprisonment and for the summary offence, 40 penalty units.

2You committed the attempted armed robbery on 1 March 2015 in the early hours of that Sunday morning.  You and two associates had been walking along Union Road in Ascot Vale when you stopped just past the intersection with Bloomfield Road. 

3Six teenage boys, aged 16 and 17, were walking along Bloomfield Road towards the intersection, and as they crossed the intersection, you and your associates called out to them.  The boys ignored you and continued walking, but you and your associates ran up to them and addressed the two boys at the back of the group.  One was carrying a backpack and you asked him questions as to whether he lived in the "hood", as you put it, and whether he wrote graffiti.  The boy said he did not and did not answer any further questions.  The second boy thought he recognised your voice and said, "Hey, I know you." 

4The associate of yours who was closest to you retreated and he and the third male stood some distance away for the remainder of the incident.  You then asked the first boy what was in his bag and he replied, "Nothing but a couple of jumpers and a bottle of Coke."  The boys kept walking and continued to ignore you, but you became increasingly agitated and aggressive and asked the first boy if he wanted to fight.  You pushed or slapped his backpack, causing him to stumble.  You then pushed the second boy in the back with both hands, and when he kept walking, you pushed him again into a wall.  Again the boy continued walking, trying not to provoke you.  You then hit this boy forcefully on the back of his head with an open palm, causing him pain. 

5A third boy told you to calm down, but you grabbed the second boy by his shirt collar, pulling him back with one hand and holding a knife near his back with your other hand.  The third boy saw the knife and described it as a three to four inch long blade, sticking out between your fingers, and he tried to pull you away.  Still holding onto the boy and with the knife in your hand, you demanded all the boys' phones and wallets, threatening to put holes in the boys.  You were told they had none.  The third boy continued to try to pry you away from the second boy, but you swung at him, the third boy, while still holding the knife and he had to duck in order to avoid being hit on the head with it.

6At this point you lost your balance and the boys got away.  You chased after them for a few seconds and then returned to your associates.  The boys returned to the house of one of the boys with whom they were staying overnight.  Although one or more of them rang 000, they did not provide details, as they did not want their parents to know they had been out without permission. 

7Several days later, on 4 March, four of the boys went to the police station and reported the matter, providing descriptions of you and one of your associates. 

8The second boy suffered a lump on his head, as a result of being struck by you, and the first and third boys were shaken, but not hurt physically. 

9The police obtained CCTV footage from Union Road and identified you from it.  They were assisted in this by the fact that you had been spoken to by Protective Services officers at Dandenong Police Station about six hours before the offending, and by officers at Werribee Railway Station on 2 March, a few days after the incident.  These officers had photographed you and noted your identity.  One of the boys, with the assistance of police, created a digital face image of you, which was quite a good likeness. 

10This led to your arrest at home on 17 March and the seizure of a small knuckle knife and a single .22 round of ammunition, located on a shelf in your bedroom.  The knife was described in the prosecution opening as a "Spyderco black claw neck knife", with an index finger hole, designed to be held by placing one's index finger through the hole and gripping the entire handle, leaving only the blade exposed. 

11When interviewed by the police, you denied involvement, but about an hour and a half afterwards, you told police that you wanted to admit it, although you could not remember it.  Half an hour after that, you said you wanted to confess, but you named a friend as the primary offender and said that you had only been present and did not actively take part in it.  You were charged and remanded in custody, where you have remained.

12You pleaded guilty at a very early stage, when you had spoken with your parents and legal advisors.  You are entitled to a discount on your sentence for having avoided the need for a trial and for having saved the victims from having to give evidence. 

13Your background presents a complex picture of disability and dysfunction, with a long criminal history since you were aged 15.  You committed these offences shortly before your 21st birthday.  I shall try to summarise the fairly extensive material placed before me, with a view to determining an appropriate sentence. 

14I was provided with two psychological reports from your treating clinician, Alison Mynard, one dated 30 August 2011 and the other dated 12 June 2013.  Although neither are recent, they helpfully set out your background.  From your early childhood, you suffered from Tourette's syndrome, with associated facial tics.  You struggled socially, behaviourally and academically and you were bullied at school.  You tended to lash out with physical violence, trying to fit in with your peers, lacking the social skills to do so and becoming vulnerable to danger inherent in things such as taking on dares.

15You were tested as having a borderline verbal intelligence score and after  attempts at special schooling, you left school after Year 9. 

16You used cannabis and alcohol from an early age, with occasional dabbling in other drugs.  It seems you developed some insight into the problems caused by drugs and alcohol, but this has not stopped you from using cannabis and alcohol to the point of intoxication.

17Ms Mynard noted a strong and persistent lack of self-esteem and a tendency to regard yourself as unworthy and not good enough. 

18Over the years you were investigated by a wide range of professionals and have been diagnosed with many different conditions, including depression and anxiety, obsessive compulsive disorder, post-traumatic stress disorder and oppositional defiant disorder.  Medication for Tourette's syndrome has kept the symptoms under control.  You understand that anger is a problem for you. 

19You have learnt, to some extent, to deal with the symptoms of ADHD, but it is still a struggle for you.  You recognise that you are impulsive, but sometimes when it is too late and you have already acted upon it. 

20Against this background, your parents often became frustrated by your behaviour, with you rejecting their efforts to help you.  They struggled to control you and protect you from harmful influences, while you were frequently arrested and eventually placed in juvenile detention.  Your mother states in the letter she has written for the court that she has seen a change in you early this year, in that you wanted to live your life differently.  She considers that your first experience of adult prison has also had a considerable detrimental effect or impact upon you, without proper treatment and medication, and that you appear depressed and very negative and afraid to leave your cell at times. 

21Your sister gave similar evidence, but added that since you have been prescribed anti-depressant medication, for the first time in many years your mood has improved.  She said your family is to attend counselling, commencing very soon, in order to learn techniques for assisting you when you come home, and she, herself, will be able to assist you in ensuring that you attend the Headspace Program, which you were about to commence the day you were arrested, which offers work and study assistance and ongoing psychological assistance.

22You were assessed recently by a Dr Adam Deakin, who is a consultant psychiatrist and he reported that according to your report to him, your experience of adult prison has had the effect of motivating you to abstain from further offending, as you recognised the futility of a life in gaol and that you had been deterred in this way by observing the hopelessness of repeat offenders.  Your counsel submitted on your behalf that this is a significant step, as juvenile detention had not had that effect in the past. 

23

That brings me to your criminal history, which began when you were 15, as

I said before, with very serious offending, including armed robbery and attempted armed robbery.  Without knowing exactly how these offences were committed, it is impossible for me to assess their subjective seriousness, but nonetheless you were placed on a youth supervision order as a first disposition, which indicates that this was not insignificant offending.  You were dealt with for two breaches of that order over the next year or so and you continued to offend in similar ways.

24In 2013 you were given a 12 month suspended sentence for further similar offending, which you breached and it was reinstated. 

25In 2014 you were placed in a youth justice centre for six months, followed by another 12 month suspended sentence later that year.

26As to more recent offending, you are now facing charges in the Magistrates' Court for theft, assault and criminal damage.  You were on bail in respect of those charges when you committed these offences.  You will also be dealt with for breaching the suspended sentence imposed on 15 July last year. 

27Attempted armed robbery is a serious offence and your actions caused great trauma for the boys who did nothing at all to provoke you.  You said they were breaking bottles and yet there is no evidence that they did any such thing.  Indeed they did what they could to defuse your agitation and divert you from what you seemed intent on doing. 

28The sentence I impose must deter others from such behaviour, but your particular circumstances are not straightforward and require careful consideration.  The offences themselves deserve a prison sentence, but one which enables you to be released to serve a community corrections order, which would provide quite intense supervision by the Corrections department and by the court, over a considerable period of time. 

29The law acknowledges that rehabilitation of a young person is a very important consideration, but its importance declines somewhat in the case of very serious offending.  However it remains a significant factor in your case, owing to you complex difficulties.  Your chances of rehabilitation do not look particularly encouraging because of your failure in the past to respond to conditions of support and obligations on your part.  However you are a very young man and you have experienced many obstacles to reaching maturity and adult responsibility.  It may be that your experience of adult gaol has changed your attitude and that this is not the time to close off opportunities for you to make real changes. 

30You are most fortunate to have the valuable support of your family members, who are still exploring ways of helping you in the most effective manner. 

31The last time you experienced a community order was the youth supervision order in 2012, nearly three years ago.  It appears from the criminal record that you did not breach that order, but of course you went on to offend in similar ways. 

32Because you have now spent six months in adult prison, the landscape is a very different one. 

33I am going to impose a sentence that will require you to spend a further period of time in prison and I do so in the knowledge that prison is difficult for you as a vulnerable young person and is likely to be more difficult for you than it would be for a young man who has more resilience.  I am told you are vulnerable and you have been targeted in prison and involved in altercations resulting in being placed in lockdown for days at a time.  You still only have telephone contact with your family. 

34Despite being willing to take part in programs, you have not been able to do so, owing to waiting lists, as I understand it, nor to take part in counselling or any other form of treatment, although you have been able to complete one certificate course.  I was referred to the very recent decision of the Court of Appeal in the case of Graeski v R[1], where the court emphasised the importance of such programs and treatment for a young offender. 

[1] [2015] VSCA 229 at para 42 - 45

35It is an important part of your rehabilitation and for the long-term protection of the community that you receive treatment and learn to lead a productive life in the community. 

36Of course the fact that you produced a knife in full view of the boys you threatened, was terrifying for them and is a very serious offence, calling for severe punishment.  The need for general deterrence is another important consideration, as I said before, and others who are tempted to offend in this way must understand that the courts will impose severe punishment. 

37Would you stand now please, Mr Greene. 

38Taking all these matters into account, I sentence you to nine months' imprisonment. 

39You have already served 173 days of pre-sentence detention, not including today, and I declare that to be reckoned as time already served. 

40You are also fined $200 for the summary charge. 

41You have been assessed as suitable for a community corrections order and that order will commence on the day of your release.  It will last for three years and you must perform 100 hours of unpaid community work within the first six months.  You will be under supervision and you must submit for testing and any necessary treatment for alcohol and drug abuse, and your current and ongoing mental health treatment will be monitored.  You may also have to attend programs to address your offending. 

42I will impose a curfew, which will require you to remain at home between the hours of 8 pm each evening and 7 am each morning, unless in the company of one of your parents. 

43There will also be a condition for judicial monitoring.  That means you will have to come to court from time to time, so that I can hear about your progress.  I will have an up-to-date report as to your progress on each of these occasions, but it will not be necessary for you to have legal representation for those appearances. 

44You must attend the Werribee Corrections office at 87 Synnot Street, Werribee by 4 pm within two working days of your release from prison. 

45If you had pleaded not guilty to these charges, I would have sentenced you to 14 months' imprisonment, in combination with a four year community corrections order. 

46The prosecution seeks an order for the disposal of the knife and I make that order, but Mr Lowey, I did not find out whether Mr Greene consents to that or whether it is opposed.

47MR LOWEY:  I can take those instructions quickly.

48HER HONOUR:  Could you please, thank you. 

49MR LOWEY:  Your Honour, he consents to that order. 

50HER HONOUR:  Yes, and the ammunition too, that is part of the disposal order, so I will make that order. 

51What remains to be done is for Mr Greene to sign the order and also for a date to be arranged for judicial monitoring.  So he can sign the order first.  Now, Mr Lowey, I am just having a bit of trouble finding a date early next year, owing to various circuits and things like that. I am going to aim for the middle of April .  I will make it Tuesday 12 April at 9.30. 

52MR LOWEY:  Yes, Your Honour.  There was just one other thing. 

53HER HONOUR:  Yes.

54MR LOWEY:  I just re-calculated the pre-sentence detention.  From 17 March until today, I have got it as 174 days, not including today's date.

55HER HONOUR:  That might well be correct.  Do you agree with that?

56MR GODLEMAN:  Yes, Your Honour.

57HER HONOUR:  Thank you, 174 all right. 

58MR LOWEY:  Every day counts, Your Honour.

59HER HONOUR:  It does.  On more thing, perhaps, Mr Lowey. 

60MR LOWY:  Your Honour.

61HER HONOUR:  When you are discussing this, if you are with his parents, if they have got any queries about the curfew, the appropriate time to raise that would be at that first judicial monitoring session.

62MR LOWY:  Yes.  Which I guess that's about four months after his release, isn't it?   

63HER HONOUR:  Yes.

64MR LOWEY:  Yes. 

65HER HONOUR:  By then they would have experienced how it was going. 

66MR LOWEY:  Yes. 

67HER HONOUR:  Mr Lowey, I will leave the Bench now and it will give an opportunity for Mr Greene to have a chat with his parents before he is taken back.

68MR LOWEY:  Thank you, Your Honour.

- - -