Director of Public Prosecutions v Kane
[2023] VCC 145
•24 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS KANE |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February, 13 April 2023 | |
DATE OF SENTENCE: | 24 April 2023 | |
CASE MAY BE CITED AS: | DPP v Kane | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 145 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty – Armed Robbery – Opportunistic and somewhat unsophisticated offending – Lower end of seriousness – Youthful offender – Drug use linked to offending – Complex mental health presentation – Relevant criminal history – Verdins – Bugmy – Prospects of rehabilitation unable to be assessed positively – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 s 77; Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269.
Sentence: Imprisonment for a period of 12 months and following the period of imprisonment to be placed on an 2 year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | A. Liantzakis | Office of Public Prosecutions |
| For the Accused | S. Gillahan | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Travis Kane, you have pleaded guilty to one charge of armed robbery contrary to s 77 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1).
2You have also admitted your Criminal Record.
Circumstances of the Offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4The two victims in this matter are Albert Young a 15-year-old male and James Silvasi a 13-year-old male.
5On 6 July 2022, the victims were at the Superbowl Bowling Alley, Narre Warren in the company of four other friends. At approximately 4.45pm, the group left the bowling alley and walked along Victor Crescent, towards Fountain Gate Shopping Centre.
6At approximately 4.58pm, you began to walk across the road on Victor Crescent, Narre Warren towards the group.
7At approximately 5.00pm, the victims were walking ahead of the group as they approached Bunnings Warehouse near the intersection of Victor Crescent and Narre Warren North Road. One member of the group called out to the victims for them to return to the group on noticing you, walking toward the victims.
8You approached the victims pulling out a box cutter with the blade extended. The box cutter is described as gold in colour and approximately 10-12cm in overall length. You held the box cutter close to your waist.
9You grabbed Mr Young on the shoulder while holding the box cutter and demanded money. Mr Young removed approximately $45.00 cash from his wallet and handed it to you.
10You then turned to Mr Silvasi with the blade facing the victim and demanded money. Mr Silvasi removed a $5.00 note from his wallet. You took the note from Mr Silvasi’s hand.
11You said to the remainder of the group words to the effect, “don’t worry I won’t come for you” and “don’t call the cops”. You then walked towards the BWS Bottle Shop and Fountain Gate Shopping Centre.
12Both victims felt frightened by the incident.
13Mr Silvasi telephoned police and provided a description of you, as a 20-year-old male, with a tattoo on the left side of his face, facial hair, wearing a blue and white hoodie, white pants, sunglasses and a black bum bag across his body.
14At approximately 5.03pm, you attended BWS Bottle Shop on Fountain Gate Drive where you purchased cigarettes and a lighter with cash. You produced photo identification for this purchase. The store attendant recalled the birth year as 2002 on the identification card. CCTV footage within BWS captured you wearing clothing matching that described by Mr Silvasi. It also depicts a tattoo of a black cross on your right middle finger.
15You then left BWS and walked to the bus interchange at Fountain Gate Shopping Centre. CCTV footage depicts you at the bus interchange with your sunglasses off, hood down and a tattoo on your left cheek. You are captured removing your blue and white jacket, revealing a light blue hoodie with a green logo on the back worn underneath.
16On 7 July 2022, police spoke to you at Fountain Gate Shopping Centre and observed that you had ‘56’ tattooed on your left cheek. You were wearing a blue and white jacket matching that worn on 6 July 2022.
17That same day, police conducted a search of your social media accounts. Police located photographs uploaded to your Facebook account on 5 and 6 July 2022 depicting you wearing clothing matching the description Mr Silvasi provided to police, and the CCTV footage from BWS and Fountain Gate Shopping Centre.
18On 9 July 2022, you were arrested at Dandenong Railway Station and conveyed to Dandenong Police Station. During your record of interview, you denied having any involvement in the armed robbery.
19Following the interview, you consented to police taking photographs of the tattoos on your left cheek and right hand.
20On 5 August 2022, police conducted separate protoboards with Mr Young and Mr Silvasi. Each of them identified you as the offender.
Nature and gravity of the offending
21While armed robbery is inherently serious carrying a maximum penalty of 25 years imprisonment, the prosecution accept that in this instance, the objective seriousness of the offending in all the circumstances falls towards the mid to lower end of the range of seriousness.
22Ms Gillahan, who appeared on your behalf, submitted that your offending was opportunistic, unplanned and unsophisticated. I accept that the offending was opportunistic and somewhat unsophisticated, however you clearly identified the victims who were at the time, on the other side of the road to where you were walking. You made the decision to cross the road and approach the victims, producing the box cutter and demanding money. The two victims then handed the money to you which amounted to approximately $50 in total. Thus while this was a spontaneous act by you, you saw an opportunity and took steps to achieve your goal.
23Your conduct can be described as a street armed robbery which was of relatively short duration, and while serious, I accept it does fall towards the lower end of seriousness.
24No victim impacts statements were tendered however, in their respective statements, the victims convey that they were both frightened by the incident, fearing you may use the boxcutter.
25I also note that this is a rolled up charge incorporating both victims and that you had been released from custody some 24 days earlier after serving a 30 month sentence for similar offending.
Personal circumstances
26You are 20 years of age. You were 19 years old at the time of the offending.
27You are the only child from your mother and father’s relationship. You have an older step-brother who you are estranged from. Your father left before you were born and you have never met or had contacted him. Your mother re-partnered and has been with your step-father for eight years. Although you respected your step-father, you do not view him as a father-figure. You reported that you are the only person in your family who has interacted with the criminal justice system.
28Your childhood was positive however you report that you suffered some trauma which is outlined in the psychological report of Dr Sam Minge, dated 14 February 2023 that was tendered on the plea. I have taken those matters into account.
29You completed schooling at Pembroke School and Timbarra P9 College, but struggled academically and were ultimately expelled in Year 8. You were picked on by other students and found it difficult to make friends. Your mother enrolled you in a learning centre however the programs offered did not interest you.
30In your later teenage years and after periods of incarceration, you enrolled in a Victorian Certificate of Applied Learning (‘VCAL’) course at TAFE. You struggled to understand the content but felt that you couldn’t ask for help.
31You began using cannabis at age 13 years, smoking it daily at times. You reported that cannabis would calm you down and make you think more clearly. You have smoked methamphetamine ‘a handful’ of times and have used other drugs ‘here and there’. You also used Xanax upon exiting prison in 2021 and were under the influence at the time of the offending before this Court.
32Although you have had a close but complicated relationship with your mother during your childhood, you have spoken to her regularly while in custody. You reported that you had suffered trauma when you were young and she struggled with this. In your adolescence, you disliked the rules she placed on you and you began to criminally offend. As a result the relationship between you and your mother became strained.
33Your mother provided a character reference, which was tendered on the plea. She states that although you had a stable homelife, your experience with ‘serious aggressive physical assaults’ caused you to fear for your safety. She notes that although you have a lot of work to do, by taking medication for your psychiatric diagnosis and with the support of Virginia Hornbuckle, she believes that you can break your cycle of criminal offending.
34You have had limited intimate relationships, which you attribute to your frequent incarceration.
35You have a complex mental health presentation. Dr Minge’s report outlines your complex history of psychological and psychiatric symptoms.
36In 2019, you experienced psychotic symptoms including paranoia and hearing voices. These voices would put you down, make you second guess yourself and told you to hurt yourself and others. You do not experience these voices currently. You believe you have been diagnosed with complex PTSD, borderline personality disorder and trauma psychosis. You have also reported feelings of anxiety, depression and suicidal ideation. There have been suggestions of previous diagnosis of ‘other specified schizophrenia spectrum and psychotic disorders, complex Post-Traumatic Stress Disorder (‘PTSD’) and Developmental Language Disorder.
37You are currently being prescribed a number of medications which include anti-depressants, anti-psychotic and anti-hypertensive which is used to treat your nightmares. You said that you are often unable to see a psychiatrist or mental health worker when in prison, due to limited availability.
38Dr Minge states that you meet the criteria for Borderline Personality Disorder (‘BPD’) with antisocial features. Dr Minge reports that while it was unclear whether you meet the criteria for PTSD, it is important to note that your childhood trauma is central to your BPD condition.
39Dr Minge assessed you as high risk of reoffending, with drug use, lack of housing, financial problems, antisocial peers, and psychological distress related to perceived rejection or untreated mental health problems increasing your risk.
40You have qualified for an NDIS plan for your mental health and learning disabilities. Ms Virginia Hornbuckle is your support worker. In a letter tendered, Ms Hornbuckle reported that as part of your NDIS care team you have an occupational therapist, a psychologist and a direct support worker all of whom note that you have engaged with positively on a regular basis, for a number of months. She reported that although finding accommodation for you upon your release is problematic, appropriate accommodation will be able to be sourced.
41You have an extensive and relevant criminal history, where all prior matters have been heard in the Children’s Court. This is your first appearance in the adult jurisdiction. You have a number of prior convictions for armed robbery, dishonesty and assault related matters. As noted above, when you committed this offence you had recently been released after serving a 30 month sentence for offending that included armed robbery, burglary, attempted carjacking and other dishonesty offences.
Sentencing considerations
42Ms Gillahan relied on a number of matters in mitigation.
43I first take into account your plea of guilty. Your plea was entered at the committal stage and it has saved the Court the considerable time and expense of running a trial. Most importantly, your plea has avoided the need for the victims to be required to give evidence and relive the event. Your plea therefore provides evidence of your acceptance of responsibility and willingness to facilitate the course of justice.
44The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [39].
45You have served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic and I take this into account. While the conditions have been improving, there is uncertainty as to when the prison environment will revert to normality. As such I accept that the additional burden you have endured over your time on remand as a result of the restrictions, will persist for some time.
46It was submitted that as a result of your childhood traumatic experiences, the principles enunciated in Bugmy v The Queen[2] should be given weight in the sentencing discretion. I have taken into account the contents of Dr Minge’s report and the impact your childhood trauma has had on your development and your psychological conditions. In the circumstances I accept that Bugmy principles do have application, but to a limited extent. As such, I also accept that your moral culpability is lessened to an extent.[3]
[2] (2013) 249 CLR 571.
[3] Ibid [42].
47Ms Gillahan submitted that Verdins[4] limbs 3, 4 and 5 are enlivened in this instance. Ms Liantzakis who appeared on behalf of the Director of Public Prosecutions, conceded that limb 5 is enlivened however does not accept that that limbs 3 and 4 are supported by the materials. I agree. While the conclusions of Dr Minge are important matters that I have taken into account as part of your personal circumstances, in my view they do not provide evidence to enliven Verdins principles 3 and 4.
[4]R v Verdins (2007) 16 VR 269.
48You are still a very young man with a troubling criminal history. As such, in my view, your rehabilitation should still be given particular focus in the sentencing discretion. It would seem that you do have a number of funded supports in the community as a result of your NDIS funding, however it is up to you to avail yourself of these supports in order to turn your life around. In that context it is self-evident that your prospects of rehabilitation at this stage, are unable to be assessed positively.
49Despite your age, deterrence both general and specific, remain important sentencing considerations. While this may be considered to be a low level street armed robbery, it is still serious offending, and others must be deterred from such conduct. You also must appreciate that given your history, further offending of this nature will only be met with terms of imprisonment.
50I had you assessed for a Community Correction Order in anticipation of consideration of a combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’). Given your complex history, it was recommended that an extensive report, rather than the more typical brief report, be prepared. The report assessed you as unsuitable, however at the further plea of this matter, with some reservation, it was accepted by the writer of the report, that if the focus of the order was therapeutic, you may be able to complete it. Also at that hearing, you verbally acknowledged that you would be willing to comply with such an order.
51In my view, you should be given an opportunity in the community to continue to access the services you have been provided through the NDIS together with the benefits of a therapeutic Community Correction Order. Thus, in my view in all the circumstances, a combination order is able to meet the relevant sentencing considerations in this instance.
Sentence
52Mr Kane, would you please stand.
53Travis Kane, on Charge 1, armed robbery, you are convicted and sentenced to 12 months imprisonment as the prison component of a combination sentence.
54Upon your release you will be placed on a Community Correction Order for a period of 2 years. As noted, the focus of the order is to assist you in your rehabilitation. As part of the order, you will be required to undergo treatment in relation to drug addiction and mental health. You will also be required to engage in programs to reduce reoffending and you will be subject to judicial monitoring.
55Pursuant to s 18 of the Sentencing Act, I declare that 289 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
56Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 2 years imprisonment with a non-parole period of 12 months.
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