Director of Public Prosecutions v Jolly
[2012] VCC 1524
•31 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE JOLLY |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2012 | |
DATE OF SENTENCE: | 31 August 2012 | |
CASE MAY BE CITED AS: | DPP v Jolly | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1524 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing – attempted armed robbery
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Ms R. Sleeth Ms R. Shell | Office of Public Prosecutions |
| For the Accused | Ms J. Kennedy | Leanne Warren & Associates |
HIS HONOUR:
1 Jamie Jolly, you have pleaded guilty to one charge of attempted armed robbery. This offence carries a maximum penalty of 20 years' imprisonment.
2 You are now 32 years old, having been born on 28 April 1980. At the time of this offending you were aged 31.
3 You have an extensive criminal record, starting in the Ferntree Gully Children's Court in February 1996 for theft, burglary and violence offences when you were aged just 15, for which you were put on a 12‑month good behaviour bond. This was followed by an appearance at the Melbourne Children's Court less than six months later for, amongst other things, theft and burglary charges, for which you were again put on a 12‑month good behaviour bond. Six months after that you appeared at the Ringwood Children's Court on five violence charges, including arson, for which you were put on 26 weeks’ probation. Five and a half months thereafter you had your first of very many appearances in the Magistrates' Court on violence, theft of motor vehicle and unlicensed driving charges, and I note that you had just turned 18. You were put on a community‑based order for 18 months.
4 Following numerous appearances at Magistrates' courts in the intervening years, in which you were given several periods in a Youth Training Centre and then adult prison, your first appearance on charges at the County Court was in February 2000 when His Honour Judge Gebhardt handed down the first of his three sentences to you. In his sentencing remarks at that time, His Honour was appraised of your personal background and stated as follows:
"You are a victim of parental abandonment, indifference and wilful neglect; a victim of monumental institutional barbarity and a victim of a convicted paedophile's callous abuse. That such a victim as you has been damaged and fractured is scarcely surprising. That such a victim's personality and identity have been dissolved into fragments is an inevitable consequence of the continuing attack on both, the sequential and cumulative horror visited upon both. Everything has conspired against you…..
…..you have had no proper family life, received no normal parental affection, discipline, security or stability. You were a discard in a moral vacuum. Given no understanding, you could not possibly find your own understanding; given no guidelines for judgment, you could not possibly learn judgment. Propelled from infancy before your time, denied childhood and adolescence, you have had no enjoyment of those passages, nor acquired the skills that those passages throw up as maturity occurs."
5 Those comments were made 12 years ago.
6 Because of your further offending, Judge Gebhardt sentenced you again in April 2000 and again in January 2001. The three appearances before Judge Gebhardt were for offences of armed robbery, attempted armed robbery and robbery.
7 Your most recent appearance at the County Court was in July last year when you were sentenced to 12 months' imprisonment on robbery, theft and aggravated burglary charges by His Honour Judge McInerney. The offences before His Honour were comitted by you some 14 days after you were paroled after serving an aggregate sentence of 15 months imposed by the Magistrates' Court on 19 January 2009 for a series of theft and burglary charges.
8 Your most recent court appearance was in the Dandenong Magistrates' Court in February this year on the breach of a drug treatment order imposed by that court last October for burglary, theft, assault and threat charges. On 28 February 2012 the drug treatment order was cancelled and you were ordered to serve the unexpired portion of 265 days in prison, which you are currently doing. Your expected release date on the breach is 19 November 2012.
9 It appears that the current offence before me was committed within one month of your release on the drug treatment order.
10 Over the many years of your offending, you have had many opportunities for rehabilitation through court-directed programs. Many times they have been breached.
11 The circumstances of your offending on this occasion are as follows.
12 On 19 November 2011, you and an unknown male entered the Yarraman Road milk bar in Noble Park at about 6.40 p.m. One of you asked the milk bar owner to change some 20-cent coins for some 50-cent coins to make a phone call. The owner handed over the change.
13 Whilst the cash register was open, the unknown male tried to get at the cash register and you pulled out a hammer and threatened the owner with it. Both of you were swearing and one of you said, "Give me the money." You and the unknown male then tried to come around the side of the register and the owner produced a hockey stick and raised it at you. The owner was worried, as his wife and children were in the house at the back of the shop.
14 You then both swore at the owner. You swiped the hammer at him. You both ran off, damaging the shop's stock as you left.
15 You were arrested and taken into custody in the early hours of 23 November 2011. You were taken to the Dandenong police station where you were seen by a forensic medical officer and assessed as unfit to be interviewed by police.
16 The prosecution accepts that you entered a plea of guilty to this offence at the earliest practical stage having regard to forensic difficulties.
17 I now turn to your personal circumstances.
18 As I noted earlier, you are now 32 years of age and you were 31 at the time of this offending.
19 You were born in the United Kingdom. Your parents separated when you were aged about three and you subsequently were abandoned by your mother when you were six. Your mother moved to Australia and you were made a ward of the state and remained so until age 13. Throughout that period you were diagnosed with ADHD and were repeatedly verbally intimidated, physically and sexually abused and in and out of boarding schools and various foster homes.
20 At age 13 your mother wanted to resume custody of you and you gained assisted entry into Australia in 1993. You could not cope with the family environment and moved away from your mother after approximately nine months.
21 Your schooling was fragmented by the disruption of your living circumstances. However, you were formally educated to Year 8 and claim to have self‑educated to Year 11 standard.
22 You have suffered various physical injuries over the years, including head, back and neck injury, and you are on medication for recurring pain.
23 You have acknowledged a history of periodic poly-substance drug abuse since early adolescence. Unsurprisingly, this is reflected in your criminal history record.
24 A psychological report from Mr Jeffrey Cummins dated October 2010 was tendered on your plea. It provides a background to your mental health condition. Mr Cummins states that you have a very significant psychological and/or psychiatric problem which will only be overcome if you are stabilized in the community, on appropriate mood-stabilising medication and if you participate in regular and ongoing treatment. The most likely primary diagnosis is that of multiple post traumatic stress disorders.
25 Mr Cummins' report also confirmed your current belief that you are not being managed in custody on appropriate medication. Mr Cummins refers to an earlier report of Dr Senadipathy, which states:
"He manifests clinical features of florid post traumatic stress disorders present in sexually and emotionally abused children and young adults - his personality irreparably scarred. He has no social and independent living skills and would continue to drift into a life on the street, drugs and crime. Ironically, he does his best when in prison where his basic needs are met and boundaries are in place."
26 That was written in 2004.
27 I note that in 2007 and again in 2010 you told Mr Cummins you felt safer and more comfortable whilst in custody. That may go to explain in some way your reasons for regularly reoffending so quickly after release. It is not, however, a relevant consideration in my sentencing discretion other than as an indication of your prospects for rehabilitation which must, in the circumstances, unfortunately, be regarded as extremely low.
28 In Mr Cummins' opinion your prognosis is poor and your offending behaviour is secondary to your mental health problems.
29 Attempted armed robbery is obviously a serious offence. The principles of general and specific deterrence and denunciation feature prominently in the sentencing discretion. The context of your situation at the time must be taken into account, but does not excuse your conduct.
30 I accept that in the week before the current offence, you had your identification card taken by police in another incident and, as a result, you could not collect your medication. A further consequence was that you could not obtain your Centrelink payment and then lost your accommodation because you could not pay the rent. You were living on the streets, were then warned by police as a result of yet another incident at McDonalds, and began to feel you were being targeted unfairly by the police. It was in that condition of anxiety and stress that you committed the current offence. I accept that your anxiety would have been exacerbated by your mental health condition.
31 I accept that your sentence should be sensibly moderated because of your mental health condition.
32 You are currently serving the unexpired portion of a drug treatment order imposed on 18 October 2011. That order was for 265 days and expires on 19 November 2012.
33 I also accept the submission of your counsel, which was also accepted by the prosecution, that the service of that time should be taken into account in a general way by way of some reduction of the sentence because of the time that has been spent in custody awaiting your sentence for this offence.
34 I am also conscious that there is a possibility of deportation because of the fact of your circumstances of living in Australia. It has been reviewed on other occasions. That is something that is a matter for the administration, but I accept that it is also something that would be a further factor to cause you anxiety whilst you are in prison and should be taken into account, and I do.
35 Mr Jolly, could you please now stand.
36 On Charge 1 of attempted armed robbery, you are convicted and sentenced to 30 months' imprisonment. I direct that you serve 15 months before being eligible for parole.
37 I declare that the period that you have already spent in custody in this matter, namely 97 days, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
38 For the purpose of s.6AAA of the Sentencing Act, but for your plea of guilty, the sentence that would have been imposed is a term of imprisonment of three and a half years with a non‑parole period of 24 months.
39 Thank you, you may be seated, Mr Jolly.
40 Is there anything else from either counsel?
41 COUNSEL: No, Your Honour.
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