Director of Public Prosecutions v Higgins
[2013] VCC 2143
•8 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00334
CR-13-00335
CR-13-00336
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HIGGINS SEAN OWENS-RANDEL SHAUN TANTRUM |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 May 2013 | |
CASE MAY BE CITED AS: | DPP v Higgins & Ors | |
MEDIUM NEUTRAL CITATION: | [20203] VCC 2143 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Livitsanos | OPP |
| For the Accused Higgins | Mr C. Carr Mr R. Tait Ms R. Greensill |
HIS HONOUR:
1 Gentlemen, you can all remain seated. The thrust of what I am going to say is as I told you, Mr Higgins and Mr Tantrum earlier, that given the significant steps each of you have made towards your rehabilitation, I was going to order a Community Corrections Order. I will make the same order with respect to Mr Owens-Randel, who can consider himself lucky to be included in that group. Mr Owens-Randel will have an extra year of the Community Corrections Order and I do not want any of you to be in any doubt whatsoever about what it is that I expect of you and that is that you continue on your current path and that each of you understands the consequences of any breach of the order of the court. When you attend for your Community Corrections Order, you will begin a range of relationships with various counsellors and other people, the effect of which, is if you do not do what they tell you to do and you do not turn up when they tell you, then it comes back to court and I hear all of about it. I have the option of re-sentencing you and you do understand, that everything that has been said today is recorded and I can play back. I will be able to hear and see exactly what was said on your behalf and hear and see what I said in reply.
2 All three of you are given that chance today to continue to make good of yourselves. But if you fall, hit a hurdle in major way, I am not just talking about the odd problem, I am talking about if there is a significant problem and you come back to court, you need to understand that gaol is a significant alternative. It is never a path to be taken lightly, but you need to understand that that is because you have been given this chance, you do not keep on getting chances. You need to understand that very clearly.
3 Daniel Higgins, Sean Owens-Randel and Shaun Tantrum, you have each pleaded guilty before me to one charge of common law assault, three charges of theft, one charge of extortion and one charge of criminal damage. In addition to that, you, Sean Owens-Randel, have pleaded guilty to traffic in a drug of dependence, namely marijuana. Further, you have each pleaded guilty to a summary matter of assault in company and that matter is before me pursuant to the relevant legislation, and you have each pleaded guilty to that matter and through your counsel you have admitted your prior history.
4 The matters for which you are to be sentenced were opened in some detail by the learned prosecutor Exhibit A. On 8 July 2012, the victim in this matter was driving his car with a passenger who directed the victim to pick you three up from a house in Carrum. The victim, Scott Thomson, the driver of the car, knew none of you. Whilst he was driving, there was some conversation in relation to the victim having some money buried at Ballarat. In fact, he denied that was the case. You each then told him not to argue but to drive you to Ballarat. He then pulled over and asked you to get out, but you refused. He continued driving down the Nepean Highway and, as he approached Mordialloc, you, Owens-Randel, lunged forward and tried to hit him in the back of the head, although he was effectively able to duck most of the blows. He then drove to Moorabbin and tried to buy petrol. He felt for his wallet, which in fact you, Owens-Randel, had already emptied. You then told him not to do anything dodgy because you knew where he lived.
5 You, Owens-Randel, then went into the shop with the victim and remained in the shop, whereas the remainder of you were in the car. The victim then sought to run away and that can be seen on CCTV footage. No attempt was made by any of you to pay for the fuel and that gives rise to the charge of theft. The victim ran away but was followed by you, Higgins, Owens-Randel and Tantrum. You caught him and kicked him whilst he was lying on the ground and he was then hit and kicked before being dragged in a headlock and forced back into the car. Those matters give rise to the summary charge of assault in company.
6 Next, the victim was placed in the back seat of his own car which was then driven by Owens-Randel to Ballarat. The victim was frequently punched during the next hour and those matters give rise to Charge 1, assault. The victim car, still driven by Owens-Randel, pulled into a BP service station in Ballan and petrol was put into the car and the victim remained in the car with Owens-Randel and Higgins. Tantrum and another then went into the store and stole various food items. You three and the other person and the victim continued driving to Ballarat and that incident is also captured on CCTV footage, although no charges arising from it are before me because they have been otherwise dealt with.
7 Not far from Ballarat, you each three said to the victim that he had better have the money. The car was stopped. Owens-Randel demanded he pay $3000 or his car was going to be destroyed, and those matters give rise to Charge 4, extortion. The vehicle was then intercepted by Bacchus Marsh police in relation to the earlier theft at the BP service station and all occupants were arrested and taken to the police station. Two of you were charged with the earlier theft at BP Ballan and bailed and, whilst waiting, the victim was in the front foyer of the police station with Higgins and Owens-Randel.
8 After leaving Bacchus Marsh police station, the group drove back to Melbourne with Owens-Randel driving. The victim was dropped off at Moorabbin and told he had until 5.30 to get $3000 or his car would be destroyed. The victim was then left by the side of the road and his vehicle driven away. That matter gives rise to Charge 5, theft. The victim was contacted later on that day and asked by you, Owens-Randel, if he had the money. He said he did not. He was then told the car was going to be ruined, and that in due course happened. The police from Moorabbin received a call that the three males were seen damaging a car in Oakleigh South and then police attended there and found the damaged vehicle. It was damaged to the extent of $6000 and that matter gives rise to Charge 6.
9 You were all then interviewed with respect to these matters on different times. Various maximum penalties are set out in Paragraph 22 of the opening. You each entered pleas of guilty to these matters at Frankston Magistrates' Court and the matter was listed for contested committal but resolved prior to any evidence being called. Matters of pre-sentence detention with respect to each of you and also submissions regarding what is regarded as Renzella time are set out in Paragraphs 24 to 28.
10 There is a victim impact statement in the matter which I have read and which I take into account. It is clear from the contents of that document that the victim suffered considerably during the ordeal and continues to be very apprehensive as a consequence of these matters.
11 Of course, as was pointed out by each of your counsel, there are a number of mitigating factors. Firstly, you have each pleaded guilty and you are each entitled to have that fact taken into account in your favour and I do so. It is clear that the community has by your pleas been spared the time and cost of a trial or trials, witnesses have been spared the ordeal of giving evidence upon your trial or trials and I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial or trials. Further I take into account in each of your favours that you intimated early your intention to plead guilty to these charges. You were apprehended in the circumstances described and ultimately made admissions to your part in the crime, certainly you, Owens-Randel, did so with respect to your marijuana charge.
12 I had you each assessed for a Community Corrections Order and also in your case, Mr Owens-Randel, a Youth Justice Order. Subsequently, of course, in the circumstances described to me by Mr Tait this afternoon, you, Mr Owens-Randel, have been further assessed by Her Honour Magistrate Goldsborough for a Community Corrections Order in recent times and an order in your favour has been made, that is a Community Corrections Order with respect to other matters. Previously this matter has been adjourned on 9 April whilst instructions were obtained as to your pleas of guilty and those pleas of guilty have proceeded on the basis that the prosecution opening is an accurate statement of the factual matters on which you should be sentenced and I have proceeded on that basis. No such difficulty arose with respect to you, Mr Tantrum.
13 I have been told something of your personal history and circumstances. Each of you were 20 years at the age of offending and you will each turn 21 this year. You, Mr Higgins, have turned 21 on 21 April, you, Owens-Randel, on 24 June and you, Shaun Tantrum, on 15 June.
14 With respect to you, Shaun Tantrum, you were born in Geelong, Your mother is aged 41 and your father is 40. Your father was a violent man and a heavy drinker and, when you were aged four, he falsely imprisoned your mother. Tragically, at that time, your father was seeing another woman whom ultimately he murdered and he was imprisoned for that crime in 1996 and he remains serving that sentence. You have had no contact with him since.
15 Subsequent to giving evidence with respect to the false imprisonment matter, your mother took you and your two sisters to Queensland, where you remained as a family for seven years. Your mother never formed a new relationship. You spent a year in China as part of a school exchange program and ultimately, when you returned to Australia, you lived in Carrum Downs, completed school and moved to Paterson Lakes and then to Blackburn in 2012. Your mother has worked in the insurance industry and now is in recruitment. Your older sister and her de facto live with your mother and your sister also works in the insurance industry. Your younger sister is completing her schooling.
16 I have had the advantage of a report prepared by Mr Healey, who sets out relevant matters regarding your health and your substance abuse and also useful history with respect to your school and employment. He applied a number of conventional tests and I note, with respect to intellectual testing, 81 per cent of people your age would do better. Personality testing was indicative of anxiety, significant hypermanic trend, linked to heightened excitability and associated impulsivity, and he notes the disposition that would become more prominent with the disinhibiting effect of stimulant drugs. It was his conclusion:
"In view of all the circumstances, his particular role in the offending, his youthfulness, the fact that he has no prior convictions and has addressed his drug abuse problems, he is hopeful that the court will extend understanding and permit him to continue his rehabilitation within the community".
17 Of course, you have been previously before the Frankston Magistrates' Court, but those matters were resolved without conviction on 8 June 2012. That sentence was that you continue with your treatment from the Youth Support and Advocacy Service and donate money to the Court of Appeal box. There was also a report from a Ms Julagi of Youth Worker and Case Worker, dated 8 March, and she describes you as open and engaging and that she had no concerns in terms of your behaviour.
18 On 9 April, your mother was called in support of the plea matter on your behalf and your mother gave evidence in accordance with various reports that have been received by me and she is very confident that you can be engaged in work as a landscape gardener or similar and she also described the efforts you made to repay the money, and she shared the views that you have made a number of decisions in your life to radically alter the trajectory on which you were engaged at the time you committed these offences.
19 With respect to you, Daniel Higgins, I have the advantage of a report prepared by the Department of Human Services, dated 9 March 2013 and I note the report says your exceptionally good compliance in the first half of your time on supervised bail, however, that became increasingly mediocre in the later stage. I also note the view of the author who said:
"Compliance for over half the bail period was excellent. His level of engagement with the writer, the readiness of his self disclosure and the degree of insight into his own behaviour are rarely seen in young men of Mr Higgins' age group.
20 It is clear from the disclosures made to the author there, for approximately two years your lifestyle was spiralling downwards and it was a chaotic situation, marred by drug use, no employment and no education in the company of others similarly inclined. The report of the author that your remand into custody was a crucial turning point for you and you appear to have made strenuous undertakings to rectify your situation since that time. You have largely severed contact with your former negative peer group, ceased all former substance use and you remain free of drugs and alcohol for approximately two to three months as at the date of that report. You were referred to YSAS and you attended a number of programs successfully and complied reasonably well with the requirements of you.
21 Your personal circumstances are that you are the oldest child. Your parents separated when you were six. You ultimately resided with your father when the situation with your mother broke down. Your schooling was unremarkable save for ultimately you were expelled from Paterson River Secondary College in the latter stages of Year 9, and those matters are referred to in the report. It was the view of a number of persons interviewed by the author of the report that your turnaround in recent months has indeed been effected and it was said on your behalf that after getting locked up, something clicked. He has been a different kid ever since. Similarly, the view of the author of the report was that:
"Though Mr Higgins somewhat seemed to have unfortunately lost sight of his obligation to supervised bail in the latter stages of the bail period, his compliance throughout the first half and slightly beyond was faultless. His level of engagement with the writer, transparency and honesty during supervision appointments motivation to address his formative behaviours have been excellent. Mr Higgins insists he has overcome his former substance addiction and appears to be enjoying renewed relationships with both family and a former positive peer group.:
22 There is also a document confirming your appointment to a position at Ducon Maintenance Pty Limited.
23 Your father also gave evidence. Your father also gave evidence in support of your plea. He is a property manager who works for Victorian Police and he described your difficult and highly problematic circumstances around the time you committed these offences with respect to your accommodation, your relationship with your mother and your drug problems. He said that when you were arrested in September 2012 and in prison for four days at Moorabbin, there was a remarkable change in your behaviour and your personality emerged and you are now a much better person in full-time employment, getting up early in the morning and revealing a very positive attitude, as the letter demonstrates, and significantly you made reparations in the amount of $1700 from your own money and you began joining various sporting teams with which you were associated as a young man.
24 Whilst there have been some relapses, which you voluntarily disclosed, generally you have embarked on a very positive program and you are to be commended for that and I accept your father's evidence in that regard, and, as I say to you and to the other two accused, whilst there can be the occasional slip which one can understand, generally you must each understand that whilst the occasional minor slip is perhaps to be expected, any major problems will be dealt with in a very summary way if and when you eventually have to appear before me for breaching any of the conditions imposed upon you today.
25 With respect to you, Sean Owens-Randel, I have a report dated 6 March and various other exhibits which have been tendered in evidence today, including the report from Mr Healey and, of course, in addition to that, the report from the Department of Human Services. Mr Healey notes that 91 per cent of people your age would do better. However your powers for delayed recall were sound and there were no major test signs of cerebral dysfunction. Personality testing was indicative of distress, disturbed emotionality with depression and general and specific anxiety. You impressed him as a vulnerable young man, immature for your age and clearly in need of ongoing counselling, support and assistance of the type you have already received.
26 As I say, there was also a report prepared for Her Honour Magistrate Goldsborough and that was before me and I have access to that report and read it and ultimately I am persuaded in your circumstances that a Community Corrections Order is also appropriate in the terms that Her Honour found, save that its terms will be extended for another year.
27 You are an only child and your parents separated when you were two. You have predominantly lived with your mother since your parents' separation and your father has re-partnered and has two further children. You currently live with your mother in Carrum. Your mother has very significant health problems, including cancer-related health issues for which you have undertaken treatment with respect to cervical cancer from which she suffered in 2009.
28 You did a vocational course in 2012 at Chisholm TAFE with an apprenticeship in plumbing. That course was not completed although you have attempted to re-enrol this year. You have previously worked as a builder's labourer and a bookbinders apprentice and you have attended a youth residential detoxification facility, which you remained in for five days and that was a very positive stay at that unit and you were, I understand, welcome back any time to that place. Clearly you are attempting to resolve your ongoing substance problems, and whilst you have not been completely successful in that regard, at least you are attempting to deal with it in a very positive way. The YSAS report also confirms that you successfully undertook that course.
29 I also have, as I say, with respect to Mr Tantrum, the fact that he has previously appeared in court in Frankston, although there were no convictions. Mr Owens-Randel, of course, you also have other range of matters in the Children's Court that I have been told of. I also was told, with respect to those pending matters with respect to the affray and I am satisfied with respect to the rehabilitation of the three of you, that the chances of rehabilitation are particularly good in light of the recent decisions each of you three, and particularly you two, for reasons I have previously mentioned. You sought to gain employment, stable accommodation, remove yourself from the company of those with whom you had previously associated with him you used drugs and engaged in acts of violence.
30 Of course, as well as those matter personal to each of you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this, involving the facts as I have summarised them already earlier today.
31 I must bear in mind the question of the protection of members of the community from you and bear in mind the likelihood of each of you re-offending, which I find to be relatively modest in respect of the three of you if you continue on the current path that you have undertaken. I also note with respect to specific deterrence the fact that you have had modest encounters with the law before, whereas with you, Owens-Randel, it is more significant.
32 I also take into account the order I made with respect to compensation and a further application has been made for a forensic sample to be taken from each of you and none of you have objected to this through your counsel and I am satisfied that it is in the interests of justice having regard to the seriousness of the offending of each of you that in all the circumstances I order a forensic sample, namely saliva, be taken from each of you. That sample may be taken by a doctor or nurse or other authorised person. The saliva sample is taken by wiping a swab inside your mouth and, although you have consented, if you change your mind, I must inform you the police may use reasonable force to enable that procedure to take place. I will sign orders to that effect, Mr Livitsanos, when they are produced to me.
33 MR LIVITSANOS: I have those, Your Honour.
34 HIS HONOUR: With respect to you, Mr Higgins, if you would stand, please. There will be a Community-based Order. The order will be for a period of two years. There will be an order for 100 hours of work during the first year. Further there will be a condition under s.48B with respect to treatment and rehabilitation, that you are assessed and tested, including testing for drugs and testing for alcohol, that there is a mental health assessment and treatment and that there are offending behaviour programs and, finally, a condition under s.48E with respect to supervision. Do you agree to be bound by all of those conditions?
35 PRISONER HIGGINS: Yes, sir.
36 HIS HONOUR: I will ask in a moment that that document be signed. You can be seated, please, Mr Higgins. Mr Tantrum.
37 There will be a Community Corrections Order of two years and there will be a work component of 100 hours in the first year and there will be orders under s.48B for assessment and treatment, including testing for drugs and testing for alcohol. There will be a supervision condition under s.48E. Do you agree to be bound by those conditions?
38 PRISONER TANTRUM: Yes, sir.
39 HIS HONOUR: So that document will be signed by you in a moment. Mr Owens-Randel, if you stand please. Be seated, please, Mr Tantrum.
40 Mr Owens-Randel, you understand that what I am going to do is extend the Community Corrections Order you have already entered into by another year and I do so, as I say, because you had a prior conviction and also it was, as described by Mr Livitsanos, you had a more significant role in the offending and, of course, also you have not been able to make as much progress as both Mr Tantrum and Mr Higgins have so far. But I am hopeful that you, having been given this chance, and it was a pretty near thing, as you understand, that, having been given the chance, it is all now up to you. You are the one who can make it a meaningful choice and you have got the next three years, and it is a long time in the life of a young man and there are going to be plenty of times when I am sure somebody might offer you drugs, or there is the opportunity to have one too many beers, just remember how close you came to spending a couple of years in the Youth Justice System, and because you have made the post a winner, just keep doing it. Remind yourself every time somebody offers you something you should not be having, is it worth two years in the Youth Justice System. That is where you are up to. All right? Have a seat, thank you.
41 Now we will get all those bits of paper prepared.
42 I will need to stand this down for 20 minutes whilst all the various bits of paper are prepared, because there is quite a bit involved. You each three can step forward – no difficulty with that officers?
43 SECURITY OFFICER: No, Your Honour.
44 HIS HONOUR: Step forward, gentlemen. I will sign the various orders, the compensation orders.
45 MR CARR: Your Honour, that was what I was going to mention in relation to my client. Is it possible for him to make monthly payments of $200? He is not working at the moment, but he hopes to be able to in the -- -
46 HIS HONOUR: I don't know that I order that. I simply order the sum to be paid. I think that is an arrangement you enter into with the Clerk of Court.
47 MR CARR: Certainly, Your Honour.
48 HIS HONOUR: Have a seat, gentlemen.. That is the 464ZF order and the compensation order. Just pardon me. Everybody have a seat; I have just got to get a return of verdict. Are counsel here for the trial?
49 MS COOMBES: Yes, Your Honour. I think Mr Anger is just outside.
50 HIS HONOUR: Just stand down for a moment and I'll get the jury in, get their verdict and then we can return to this matter.
51 (Short adjournment.)
52 UPON RESUMING:
53 HIS HONOUR: Counsel, step forward with respect to the other matter. We have a range of technical issues to deal with. How are we going to with all those? I will just stand down for five minutes while those documents are prepared.
54 (Short adjournment.)
55 UPON RESUMING:
56 HIS HONOUR: Mr Owens-Randel, Mr Tait, if you could assist in both that one and also, I think it is Mr Tantrum, so those two, and this is Mr Higgins. Each of you need to maker sure that you understand the effect and conditions of the order and consent to it being made. I think you have already made that concession when you were first assessed, saying that you would be content to do it, but you should satisfy yourself that each of those – have a seat gentlemen, just come to the Bar table there, you will need to come up and sign those things. Remember, just before you sign it, what you are signing up to
57 (Orders signed and acknowledged.)
58 I think that completes the matter. Thank you all and thank you all for attending and all the parents and others who have come along, and just remember, Mr Higgins, Mr Tantrum and Mr Owens-Randel, that when anybody comes up with a smart idea that they think you ought to join them down the pub or wherever else, just remember that you are no longer in the position where you can agree to do that, because we all know what is going to happen. So just make sure that you make every post a winner in the next couple of years and you have started off well. All you need to do is continue it and we happily will not have to see each other again, in court at least, anyway.
59 PRISONERS: Thank you very much, Your Honour.
60 HIS HONOUR: All right, gentlemen, good luck. As I say, we all wish you the best, but it's up to you. Thank you. We will adjourn.
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