Director of Public Prosecutions v Kee
[2022] VCC 1951
| IN THE COUNTY COURT OF VICTORIA AT Melbourne AND GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-00611
Indictment No. M11959755
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYLON KEE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 27 October 2022 (Geelong), 8 and 9 November 2022 (Melbourne) | |
DATE OF SENTENCE: | 9 November 2022 | |
CASE MAY BE CITED AS: | DPP v Kee | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1951 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery; criminal damage; Summary assault with a weapon. 29 years of age as at sentence. Some criminal history; relatively early
plea; Worboyes v The Queen [2021] VSCA 169 –COVID-19. Parity with co-accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Fargher Ms R. Hamnett for further plea and sentence | Office of Public Prosecutions |
| For the Accused | Mr C. Grant Ms M. Brown (sentence) | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Waylon Kee, on Thursday, 27 October at the County Court sitting on circuit down at Geelong, you pleaded guilty to one charge of armed robbery and one charge of criminal damage.
2In addition, you pleaded guilty to a single summary offence of assault with a weapon. You are now 29 years of age and you have admitted a short criminal history.
3The armed robbery is punishable by a 25-year maximum prison term. The criminal damage has a 10-year maximum prison term and the summary assault has a two year maximum prison term owing to the use of a weapon.
4
I asked the prosecutor at the time of the plea whether the armed robbery was a category 2 offence as the agreed summary made it clear that the victim sustained an injury in the course of the incident. The summary also suggested the
in-company nature of the offending. In fact, your own counsel's written submissions mentioned the in-company nature of the offending as did the Crown's submissions on sentence.
5It seemed to me possible, if not probable, that s3(da)(ii) and (iii) of the Sentencing Act 1991, might well come into play. The Crown in response to my question contended that the armed robbery was not a category 2 offence in the setting of this case, and they advanced reasons for that view. Your counsel adopted that position and also the prosecution arguments that were voiced in support of that position.
6Armed robbery is a category 2 offence if a victim of the offence has suffered injury as a direct result of the offence, (see s3(da)(ii)) or the offence was committed by the offender in company with one or more other persons (see s3(da)(iii) of the Sentencing Act.
7The prosecution argued that this instance of armed robbery was not a category 2 offence, as the injury to the victim flowed from the assault with a weapon offence which occurred seconds before the armed robbery and the injury hence was not suffered as a direct result of the armed robbery. They argued that that was so, even though the weapon used to assault was the very same offensive weapon employed in the armed robbery occurring only seconds later. They argued that hence the s3(da)(ii) requirement was not fulfilled here.
8As to the in-company requirement in s3(da)(iii), the Crown argued that Mr Mawson has not been dealt with for armed robbery and though he was acting in company, his use of the angle grinder was not to commit the taking or theft. Well, your counsel Mr Grant gratefully adopted those submissions that had been made by the Crown. They struck me at the time as being quite artificial actually.
9
The in-company nature of offending is surely not to be determined by whether or not any other person has been identified, charged or successfully prosecuted.
I posed the question in the course of the plea, that had Mawson not been identified, could it seriously be argued that the conduct described was anything other than in company, and I must say I received no satisfactory or real answer to that question. These events disclosed at a general level, in company conduct pretty much from start to finish.
10You drove the car. You stopped the car hemming in the other car. You and Mawson both got out. You were both armed. You both then set about damaging the car. Mawson opened the driver's door, whereupon you in an unbroken exchange, assaulted Mr Robinson with the weapon being the metal bar and then relieved him of his keys.
11The Crown distinguished between the force employed and the assault which injured Robinson and the threat of force employed in the armed robbery, even though the events ran into each other, and the actual force employed in the earlier assault with a weapon would no doubt play into the fear and apprehension felt by the victim in relation to the actual armed robbery. As I have said, I regarded the submissions as being quite artificial. Though I had, and still have these reservations. I will act on what is essentially this joint submission made to me.
12The fact is you pleaded guilty, in a setting where the prosecution were making the relevant concession that this was not a category 2 offence. Whilst I entertained my own doubts about the correctness of the submission, I will act on it. I believe to do otherwise would be unfair to you. It follows then that this is not one of those cases where prison cannot as a matter of law be combined with a Community Corrections Order. There is no mandated position, as none of the offences is a category 2 offence. Accordingly, I do not need to find one of the special reasons set out in s5(2H) as that provision does not apply here. Whether or not a Community Corrections Order can be employed though, will depend instead on the application of general sentencing principles.
Facts
13
The prosecutor at the time of the plea Ms Fargher opened the case to me on
27 October down at Geelong in accordance with a written police summary which was dated 17 May 2022. Your counsel, Mr Grant told me that this was an agreed summary and so that document was marked as Exhibit A on the plea.
14I see no need to set out the full sentencing facts in these my reasons. That quite lengthy agreed document does that and I will sentence pursuant to it. That document, and the sentencing submissions, referenced materials within the depositions, such as statements and photographs, so of course I have regard to that material as well. For instance, there is material touching upon the impact upon the female passengers who had not made victim impact statements. I also spelt out to your counsel a more complete chronology given that he was raising the issue of delay in mitigation in this case. The Court was aware of the precise listing chronology and certain steps taken along the way by your solicitor to adjourn the case and as a matter of fairness it was appropriate to raise those matters with your counsel, so that he might have the opportunity to address me in relation to them.
15I will say something then only briefly about the agreed facts, so that my ultimate sentence can be understood by anyone reading these sentencing remarks.
16For no reason that I can glean, in the early hours of 12 September 2021, you determined to terrorise an innocent motorist. It was 3 am and the summary spells out how initially something was thrown at that other motorist's car. That something was a small axe or hammer. This was just the context for what then transpired. You are in fact not to be sentenced to having any role in the throwing of that axe or hammer. It was thrown by your offsider Mawson, who was the front seat passenger in your car.
17Unsurprisingly, the other driver, Mr Robinson wanted nothing to do with you or your offsider, Mawson. Mawson had after all been hanging most of the way out of the passenger side window screaming out, 'Do you want a go cunt?' Mr Robinson was in his car with three females. He most certainly did not ‘want a go’. Understandably he wanted nothing to do with you or your passenger. He turned left onto Barwon Heads Road and drove off at speed, determined to avoid any further contact. He was not successful.
18He had pulled over at a point when you were out of sight and he had done that to check on the damage to his car. This was some distance down the road after he had lost you. You came into sight and he tried to leave the scene in his car. You drove towards him, forcing him to drive off the road into the grass and you then hemmed his car in as he tried to escape any further confrontation.
19You and Mawson got out. You exited carrying a metal pole, Mawson a battery-powered angle grinder and both of those implements were employed in the events that followed. You hit driver's side window twice with the pole causing damage and then smashed the windscreen of Mr Robinson's car. Why? Well, that's anyone's guess. Mawson meanwhile was using the operating angle grinder to damage the rear driver's side panel before working his way to the front of the car. Significant damage in what was plainly joint activity.
20
The frightened occupants remained inside the car. Mawson opened the driver's side door, you and Mawson were then yelling at Mr Robinson who was still seated in that vulnerable position in the driver's seat of his car. You were accusing him of being outside your house. He had not been. You then used the pole to strike
Mr Robinson a number of times to the chest and arm, hands as he sat in the car. Hence the summary assault with a weapon charge.
21Meanwhile Mawson continued to damage the car with the angle grinder. You reached in and took the keys out of the ignition and Mr Robinson grabbed your hand and tried to prevent that from occurring and Mr Mawson then moved the operating angle grinder up towards Mr Robinson's face. Mr Robinson let go. You then took those keys and walked away with them, hence the armed robbery. The pole was in your hand at the time of the taking of the keys and threat of force was pretty evident given that only seconds before you had actually been applying force in the assault with that same offensive weapon.
22Mawson then used the battery of the angle grinder to strike Mr Robinson to the face at a point when Robinson had exited the car. You and Mr Mawson then walked back to your car and left the scene. As you drove off Mawson yelled back, 'Nice car.' Mr Robinson had observed your registration plates. Others had filmed the end of this very unpleasant event. The police were called and a crime scene was processed.
23On 12 September of last year, warrants were executed on your home and Mawson's. Mawson was arrested. He made a 'no comment' interview as was his right. You then handed yourself into the police on 15 September and made a 'no comment' interview as was your right.
24You were in custody until being bailed on 3 December of last year. I returned you to custody on the day of the plea.
25The agreed summary sets out some of the chronology of the matter before the Court. The co-accused Mr Mawson was dealt with by a Magistrate at the Geelong Magistrates' Court on 6 May of this year. He was dealt with for criminal damage related to the joint activity I have described with the additional damage in his case arising from the earlier throwing of the hammer.
26There was also an assault with a weapon being in his case, the single strike with the battery. He was not dealt with for armed robbery, robbery, or even theft, or any joint involvement in your physical assault. There was in his case, a separate unrelated criminal damage which occurred the following day.
27He received six month prison terms for each of the criminal damage and assault charges arising from this incident, with a separate three month term imposed for the later - unrelated criminal damage charge. As to the prison sentence relating to the two matters arising from this incident, there was the six month base imposed on the criminal damage charge and three months' cumulation of the six month sentence imposed on the summary assault.
28Finally two months of the other unrelated criminal damage sentence was cumulated leading to a total effective sentence of 11 months in his case. It follows that 9 of the 11 months pertained to his conduct at the scene that I have described. That summary and his prior history are marked as Exhibit D on the plea.
29So much then for my brief summary of the offending. I will sentence pursuant to the more detailed agreed statement.
30This was frightening and serious offending. It was committed against totally innocent people and there is no sensible or rational explanation for any of it. None. What you told Mr Simmons, the psychologist, made very little sense, see paragraph 21 of the original report. This notion of your behaviour escalating after you and your co-accused became engaged in a confrontation with another vehicle.
31The notion of escalation and your indication that your behaviour was a reaction to what had occurred. Well what had occurred? Nothing. Nothing at least on the part of the other motorist to lead to any confrontation or any escalation at all. This was not a road rage event targeting some erred driver. Your comments at the door spell that out pretty clearly. It is all quite puzzling. The argument is that you were affected by drugs, but of course, that is not mitigatory in any shape or form in this case.
Impact
32I turn to the impact of your crimes.
33I hardly need an impact statement to know that this was a frightening event. Some of the women were crying at the scene. Their statements described how they felt and they are referenced in the prosecutor’s written submissions. They were terrified, petrified, shocked and why wouldn't they feel those things? This was just totally uncalled for, senseless violence and damage arising completely out of the blue, in the early hours in a public place. They will not forget this event in a hurry.
34Mr Robinson's relatively recently purchased $43,000 car, his pride and joy, was significantly damaged. He was assaulted. Why? No reason. None.
35There is an impact statement from him which was read out aloud by the prosecutor. It spells out the way that he has been affected. He has been left with a sense of anxiety when he leaves the house or is out driving. He feels anxious when a car pulls alongside him. He just cannot understand why he was targeted. He always keeps away from trouble and lives a quiet and decent life. He has struggled to deal with the impact of your crimes. He was self-employed and had to persist in his work. His injuries were not significant, but the financial impact was significant, second only to the emotional impact felt by him.
36He had dreamt of owning this car since he was a boy. He had worked hard to achieve his goal. He had only had it for a couple of months. Then you came along. There has been a significant financial impact on him, quite aside from the inconvenience of having a car off the road for six months. Your crimes have had a large impact upon him. I have regard to the admissible portions of that impact statement. One particular sentence was not relied upon or even read out by the prosecutor relating as it did to Mr Robinson’s statement as to your reputation. I put that sentence aside altogether.
37I take into account the impact of your crimes as I am required to.
In Mitigation
38Your counsel Mr Grant relied upon detailed written plea submissions dated 20 October 2022. He did make some adjustments or qualifications in the running, for instance, he could not maintain the contention that you had stayed out of trouble altogether since the offending and had complied with your conditions of bail. One of the conditions of bail was that you not use any drug of dependence and it was conceded that you had continued to use drugs.
39Nor could he sensibly maintain the submission made in the written document as to delay. He had seemingly been unaware of an adjournment application made on your behalf earlier in the year.
40The court was informed by your counsel about your personal background which included your family, your education, relationships, schooling and employment history. Mr Grant made submissions as to your drug use and your prospects of rehabilitation and risk of reoffence. He made some submissions as to the relevant sentencing purposes in play in this case. He also made some submissions about the relative seriousness of the offences.
41
He placed before me a report from a Psychologist, Mr Simmons as well as an addendum report. It was that addendum which had necessitated the matter running into a second day as a part-heard plea. The case was adjourned from
27 October, part heard to yesterday's date and that addendum was filed the night before. Then yesterday, as you heard, we could not proceed as there had been an oil spill which had somehow corrupted a number of the prison video links and so I adjourned the matter to this morning.
42Mr Grant relied upon a CISP report from Brendan Hollis, a work reference from Michael Motika, a letter from The Salvation Army and one from your father. Also a brief report from a Psychologist, Michael McCoy and letters from your former partner Sarah Swan and Emily Mawson, the sister of your co-accused.
43Mr Grant conducted a thorough and comprehensive plea on your behalf over two days and he has relied upon a number of matters in mitigation. They were the following:
·Your relatively early guilty plea in the midst of the global pandemic.
·The presence of some remorse.
·The impacts of COVID-19 upon your custodial experience to the point of your release on bail last year, and into the future, given your return to custody.
·The delay in the finalisation of the matter.
·The principle of parity of sentence to some extent.
·Also limb 5 of Verdins[1] which he has addressed by way of brief submissions today focusing on the addendum report.
[1] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
44He conceded that you had a criminal history of some relevance to my task and he took me through those matters. He conceded that a term of imprisonment was warranted here, and one extending beyond your existing pre-sentence detention which stood at only 80 days, as of the date of the plea back on 27 October.
45He argued that it would be open to deal with you by way of combination type order. So, a prison term with your ultimate release from prison onto a suitably conditioned Community Corrections Order, failing that a head sentence and a non-parole period where the various matters in mitigation were adequately recognised.
Prosecution
46The prosecutor on the day of the first plea, Ms Fargher, made some relatively brief oral sentencing submissions, supplementing the more detailed written submissions which were marked as Exhibit C. The submissions addressed the gravity of the offending and the matters of aggravation and mitigation existing in this case. The Crown did not accept the suggestion made by your counsel that Mr Mawson initiated the offending, or the submissions made as to your prospects of rehabilitation.
47They advised the court of a subsequent matter occurring only a few days before the plea date. Exhibit E contains the summary and charge sheets and a photograph. Your counsel had indicated that that matter would be proceeding as a plea. There was a recognition in your counsel's submissions, of there having been a slip up represented by the events of 17 October.
48The Crown has also this morning, as indeed on the last occasion, challenged the application of limb 5 of Verdins. Of course, the addendum had not been filed until recently, and the prosecutor today, Ms Hamnett has challenged the application of limb 5, saying that the evidentiary material does not rise to the necessary level. The Director of Public Prosecutions was calling for a head sentence and a non-parole period at the time of the first appearance back on 27 October and nothing has changed since.
49I am not bound by any submissions made as to sentence by either side, I have to exercise my own sentencing discretion having regard to the various principles of sentencing and obviously paying due regard to any submissions made to me and the various materials relied upon.
50I called for a Community Corrections Order assessment on day one of the plea and that has now been received. I told you at the time that my calling for the assessment report did not guarantee that you would be placed on such an order, that you should take no comfort from my making that call.
Background
51I will discuss the various submissions shortly. I want to turn firstly though and quite briefly to your background. There is a fair amount of material before me as to your background and much of it is in the first report of Mr Simmons. There is also a lot of detail in the written submissions of your counsel and some detail even in some of the references and in the CISP materials. I have no reason not to accept what I have been told about your background. I see no point in just repeating all of this material which I do accept. By way only then of brief summary, you were born in Geelong in July 1993, so you are now 29 years of age.
52It follows you were 28 years of age at the time of the offence and hence no silly teenager engaged in some youthful exuberance or frolic. You had a decent enough background, despite some of the issues spoken of in the submissions. This is not a case where disadvantage was in any way being relied upon. You were brought up initially by both parents on a hobby farm in Moolap outside Geelong. You rank your childhood as 'good', though at times your parents each might have had some problematic issues with alcohol and you were often enough left to your own devices, without much structure or supervision. Those things are spoken of in that report of Mr Simmons.
53You have two younger siblings, a brother and a sister, and you have an older half-brother from your mother's earlier relationship. There have been issues I am told with substance abuse experienced by all of your siblings. You have no contact with your younger brother and only occasional contact with your sister.
54Your parents both worked hard. Your father on the farm and as a floor and wall tiler. Your mother in her own hairdressing salon. I was told that they separated when you were about 13 or 14 years of age and you lived with your dad thereafter. You struggled with the separation. There was a point in time where you had no contact with your mother for a couple of years. Your parents each have re-partnered.
55On the schooling front, you were educated to Year 9 level. School had not been easy for you, though you were pretty good at sport. You left school and at age 15, started an apprenticeship as a bricklayer. You did that apprenticeship through your boxing coach as I understand it, and you completed the apprenticeship at the age of 19 and you worked in that area for a little while. You then worked as a concreter for 18 months and on and off over four years with your father who was a tiler.
56You have also worked as a greyhound trainer, though that was problematic over COVID obviously. Once bailed to live with your aunt in Lara, you did some part-time labouring and also some part-time greyhound training. You have had a couple of long-term relationships both now ended, with the most recent being a five and a half or six year relationship with Sarah with whom you had a daughter Eden, who is now four years old.
57That child is in the care of her paternal grandparents, owing to child protective concerns arising eight or so weeks ago. The written submissions from paragraph 17 to 23 spell out a number of medical issues arising over your life. I see no need to document them in these my reasons. None of them are relevant to my task.
58In so far as mention has been made in the submissions or the report of Mr Simmons to head strikes and the possibility of an acquired brain injury, there is no acquired brain injury. The case was adjourned earlier in the year to allow for the preparation of an ARBIAS report. That recently received ARBIAS report was not provided to the court, that investigation disclosed the existence of no acquired brain injury. Mr Grant informed me of that fact.
59Drugs and alcohol have been a major problem for many years (see paragraph 26-32 of the submissions). You started using alcohol at a very young age, and likewise had a disturbingly early introduction to drugs. You have used a variety of different drugs and ice use has obviously been highly problematic. Since being bailed, you had initially been on the CISP bail and you did well on that supervised release, there is no question about that. It seems you have done less well since that bail came to an end.
60There is a favourable report from Brendan Hollis setting out your level of engagement on the CISP bail. You successfully completed that bail. There is also the related letter from The Salvation Army, from Ms Pearce, relating to alcohol and drug counselling and the letter of Mr McCoy relating to counselling. Also, for that matter a strong reference from Michael Motika at Contour Homes and one from your father as well.
61You have a short criminal history. It dates back only to 2014. It obviously has some relevance to my task though. There are some matters of violence and dishonesty within that history. You have not taken your chances. Your account of the past offences to Mr Simmons or his recording of the account is very different to the reality of that past offending. Mr Simmons noted your account of the most recent matter and also the first matter in 2014, relating to incidents involving your relationship partners. Mr Grant told me that that was not the position at all.
62The most recent offending, for which you received a 12-month head sentence and a six-month non-parole period, in fact related to a fist fight out on the street, where there was a recklessly causing injury and the finding of a sawn-down .22 rifle in your car. It had nothing to do with the intimate partner.
63I was told that you were paroled and compliant with your parole. There was a suspended sentence imposed back in 2014 for offences including assault and the possession of a firearm. You breached that order. That also had nothing to do with an intimate partner. I was told it related to a confrontation where you had been reversing your car at your mother's car, where you got out and then assaulted a man who was not further identified. There was also an affray dealt with in 2016. That related to a fight outside a hotel.
64Now, I have said as much in the course of plea but I need you to understand that you do not fall to be sentenced a second time for any of that past conduct. You received sentences and served them. Nor does that criminal history aggravate the offences I am dealing with. What I must do is pass proportionate sentences. I do though have to make judgements as to the weight to be given to specific deterrence and community protection. I have to assess your prospects of rehabilitation and your risk of reoffence. It is plain that you must be deterred. Past efforts to deter you have obviously not succeeded.
65Having said that though, nor can I ignore your efforts whilst you were on that strict bail, on the CISP component. That strong performance on the CISP bail, well it must be viewed in light of your most recent mishap or slip up on 17 October and your disclosures to the Community Corrections Order assessor as to ongoing drug use in the six to eight months prior to your most recent remand.
66However, as I said on the plea, one has to be realistic about these things. No doubt it would be better if you had been entirely drug-free since being released on bail. Of course it would. However, slip ups will and do occur and you recognise in your most recent discussions with the Community Corrections Order assessor the ease with which you slipped back into drug use. As I said a short time ago in the course of the further plea, it is far better that you tell the truth and face up to that reality.
67The efforts on the CISP bail certainly give me a sense of your capacity for rehabilitation. Whatever might be said of your criminal history, it is plain that there have been many years where you have steered clear of offending and steered clear of the courts, and many years where you have evidently been a hard worker. Your father speaks of your many qualities. So too your former partner, Sarah Swan, as well as Ms Mawson.
68I should say that your father and his partner, your stepmother, Jo attended court down at Geelong. So too your former partner Ms Swan and your friends, Ms Mawson and Mr Wright. Your father joined the aborted hearing yesterday by remote link and he is here physically today. So there is obviously ongoing family support. That is very plain and that is a positive. Of course it is.
69I take into account your background.
Guilty Plea
70Let me then delve into some of the matters in mitigation raised on your behalf. The first of those matters I will turn to is your guilty plea. It was a plea at what I will treat as an early, although not the very earliest, stage. Your case settled on the day of the contested committal, but at least that was prior to any witnesses actually being called to give evidence. Regrettably the four witnesses being the male driver, Mr Robinson and the three females in the car had attended at the police station to give evidence in the case. The matter apparently settled in the course of the afternoon and they could be sent away.
71You have in this way, taken quite early responsibility for your crimes. As a result of your plea, the time, the cost and the effort of a contested committal hearing in the Magistrates' Court and a trial up in this court has all been avoided. Witnesses have not been required to actually give evidence. Giving evidence can in fact be a stressful experience. The witnesses have at least been spared that experience.
72You have facilitated the course of justice in these various ways, and this must be adequately reflected in the sentence that is imposed by the court.
73Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes[2] and your counsel referred to more recent discussions of that decision in his written submissions.
[2] Worboyes v R [2021] VSCA 169; 96 MVR 344
74In the course of the global pandemic that has plagued us over the last few years, a very large backlog of cases has arisen. Your case is not part of that backlog. In fact, it was not from very early on. It settled very swiftly. So, I take these various matters into account for mitigation.
Remorse
75
You have pleaded guilty at an early stage and a guilty plea is often indicative of the presence of at least some remorse. Your counsel referred to that guilty plea and what it implied, but also to matters within the references of Ms Swan and
Ms Mawson in support of his submission that there was some remorse present here. There is also some reference to remorse and regret in the assessment materials that I have called for that have been marked as Exhibit F. I am prepared to find in your favour that there is some remorse in this case and I take that into account in your favour.
Rehabilitation
76
I turn then to your prospects of rehabilitation. As I said earlier you were not some silly teenager out on some foolish lark. You were a mature adult. You were
28 years of age at the time of this serious offending. You have a short but relevant criminal record. You were sent to prison in 2019 for what must have been a relatively nasty incident in a public street, of recklessly causing injury and theft, and the finding of a sawn-down weapon in the car. Prison evidently did not deter you, for here you are again.
77You have long-term and significant drug issues. Whatever spin you might put on your drug use, from time to time it seems you might be downplaying the seriousness of the issues thrown up by your drug use. However at other times you seem to confront the issue square on. Also, you have the mental health issues spoken of in the addendum report. I have mentioned the fact of your criminal history being quite short and it does not contain matters as serious as these. I have mentioned already the existence of family support as evidenced by your father's excellent letter, and your good efforts over a lengthy enough period whilst on the CISP bail.
78Up until recently, you have continued to stay out of trouble. There was a slip up on 17 October. That is all it is. It does not undo all the earlier good work. You were also quite candid with Corrections as to ongoing issues with drugs since the CISP bail came to an end. As I said a moment ago, it is better that you are honest about that, than hiding the issue.
79You have previously been capable of completing an apprenticeship and holding down a job and a hard one at that. But long-term issues that you have had with drugs casts a pretty dark shadow over your future prospects. It is hard not to be a little bit guarded given those issues and your lack of response to past court orders. Also, the fact that you still sometimes seem to have a pretty limited insight into the ramifications of ice use. In discussions with Mr Simmons you seem not to really think that ice affects you greatly. Well it obviously does.
80I did not accept the Crown submission at the date of the plea on 27 October, that paragraph 14 of Mr Simmons' report records you discussing ongoing drug use. I thought at the time that there was some problematic use of mixed tenses in that paragraph by Mr Simmons. However, the recent Community Corrections Order assessment report suggests that the Crown submission was in fact correct. It speaks of ongoing drug use in the six to eight months leading into your remand the other week. The addendum report I think also supports that view as well, and your counsel concedes there has been that ongoing drug issue.
81So, there was the slight hiccup provided by that most recent mishap and the ongoing drug use, but of course I accept it must be stressful awaiting the finalisation of the case. Those things, slip ups, are to be expected and I do not focus on them, and/or give them any great weight in my task. As I say it is far better to focus on the positives in your case. The positives of the early compliance and the positives of the efforts that you have made over the course of your life to actually become and be a functioning member of the community.
82If you can leave drugs behind you, your prospects will surely greatly improve. If you cannot well they will be pretty bleak. It is as simple as that. The ball is in your court, but I suppose it always has been. Your father speaks of the trough that you have been in over the last few years. He thinks and I am sure he is correct, that drug use has dragged you down and totally changed the trajectory of your life. But he sees a road back for you.
83As is often the case, there is material before me that makes it very plain, you are not just the offender who has committed these serious crimes. It is never that black or white. You have a number of qualities as the work and the other references make clear and I certainly will not write you off.
84I have no reason, none, to think that you would wish to continue to live the sort of life that you have been leading over the last few years. Your father describes how you have reached, as he describes it ‘rock bottom’. Over the last couple of years you have had drugs, offending, courts, prison, loss of self-esteem, no doubt the loss of good family relations and bridges being burnt, loss of the care of your daughter, and loss of relationships. Why on earth would you wish to continue down that road?
85Your father says that you hate what your life has become and again, why wouldn't you? You obviously have the makings of a decent person. Your father sees a road back for you with support and the right help and you did take some recent preparatory steps prior to my remand of you, to book in for drug withdrawal rehabilitation with Barwon Health and also for some other counselling at Orange Door.
86There is only so much that others can do for you. I accept your counsel's submission that your prospects will depend in large part on your ability to abstain from illegal drug use. Not that drugs are in any way a mitigatory here. They are not. Can you abstain from illegal drugs? If not now, well when? When will you Mr Kee? You want to have an active role in the upbringing of your daughter, but you really will not, if you continue to use drugs.
87Life will just continue to pass you by. So, if you cannot abstain from drugs well you have been given a pretty decent preview over the last couple of years of what lies ahead in the future and it is pretty unsavoury actually. Your life will be a complete train wreck. It does not need to be. Not at all. You can get back onto the right track, I am confident of that, if - if you can leave drugs behind.
88I do understand why the Crown submit that I should only be guarded, however I accept your counsel's submission that you have quite reasonable prospects of rehabilitation, conditional upon leaving illicit drugs in your wake. That is easier said than done, as I think you are starting to understand, but I do accept that you at least have that desire and that is important.
COVID-19
89I turn to the issue of COVID-19 and its impact upon you. I have no difficulty at all accepting that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners generally. As your counsel made plain, this was not a big matter on the plea. You were after all only in custody from September of last year, until being bailed in December, so a period of 80 days.
90No doubt there would have been some worries about catching the virus in such a setting, and no doubt you would have experienced the increased burden posed by quarantine or lockdowns on occasions including the initial quarantine.
91Also, the absence of in-person visits for that period as well as the lack of access to the full range of courses and programs. Your counsel in his written submissions cited some 2020 decisions from the Supreme Court. So they date back then to early in the pandemic, but he confirmed that a lot has changed since then. Things have looked up in the prison since about March of this year, but of course you have not been there since March. I remanded you only on 27 October.
92Your counsel confirmed that the detail in the written submissions as to a 14 day quarantine arrangement and lack of visits is no longer current. That pertained to your earlier experience, so last year. As to what lies ahead in the future on the COVID front for prisoners, well that really is impossible for me to determine and I am not free to guess about that. Those whose job it is to run the prisons, will be in a much better position to assess the true impact.
93They will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place. I make it clear that I certainly do not proceed on the assumption that it will. To take it into account in that way will then be for me to contemplate future executive action which is prohibited to me.
94I believe it is reasonable to think that prisoners, may yet have some issues thrown up by COVID-19 in the coming handful of months. There are still some lockdowns and the uncertainty that they cause to prisoners, will not just evaporate, it will persist. No doubt you have also been quarantined upon receipt back into prison.
95I take into account the increased burden arising from COVID-19 in the manner that I have described. So that which has arisen in the past prior to being bailed and that which has occurred from the date of my remand and which lies ahead into the future.
Delay
96I turn to the issue of delay. Your counsel correctly retreated I think very significantly from those written submissions set out at paragraph 46. There has not been anything like the sort of delay that was being hinted at by the written submissions. The 'suspense' felt by you in the 'the years where the matter has been hanging over your head' and the state of limbo described, well they might be apt descriptions in another case, but just not this one.
97
This offending occurred on 12 September of last year. You were interviewed on 15 September and charged. There was filing hearing on the following day,
16 September. A bail application where you were granted bail on 3 December and a committal mention on 10 December where for whatever reason the decision was taken that there should be a contested committal.
98
You chose to have the matter proceed to a contested committal on a date in April of this year. It settled on the day of the committal without witnesses being called and you were on that day, so 20 April of this year, committed to this court for the circuit commencing on 23 May. A plea date was listed for 24 June of this year. It was your application to adjourn that date to the circuit commencing on
26 September, owing to the need to get a neuropsychologist's report.
99Then the court was told that you were late to that August appointment and that the ARBIAS report would be delayed, prompting an attempt to further adjourn the plea out of the September/October circuit listing before the circuit had even started. I refused that application and set the matter down for later in the circuit at a point when that report would have been received.
100Then another application was made to adjourn out of that list owing to the fact that Mr Simmons had evidently not addressed the Verdins considerations and there was a need to obtain an addendum report. I refused that application, but I acceded to the application to adjourn the plea off part-heard to permit the obtaining of the addendum report which has now been obtained.
101Anyway, the short answer is, there has been very little by way of delay. The matter has been brought speedily to this court and such delay as exists has been brought about by your own legal team acting on your instructions. There is no business even citing cases such as Merrett[3] and Cockerell[4] and Tiburcy[5], the cases that are cited in the written submissions. The delay is minimal here and not a matter of any sizeable mitigation at all.
[3] R v Merrett (2007) 14 VR 392
[4] R v Cockerell (2007) 125 ACrim R 444
[5] R v Tiburcy (2006) 166 ACrim R 291
102I have already mentioned that until recently you have remained offence free in that period and of course you get the benefit of that. As well as the benefit of having done well on the CISP bail. Those efforts in the period awaiting the finalisation of the matter are of value to you. They are not in vain. Nor do I say it is easy waiting for the matter to be finalised. I accept it is not easy and I do not ignore that either. But the fact is delay and the submissions made is that delay are a bit of a distraction in this case.
Verdins
103Your counsel placed before me today an addendum report from Mr Simmons, which has been marked as part of Exhibit 2. He argued that limb 5 of the case of Verdins was engaged in this case.
104He made it plain that there was some limitations in the addendum report and even in the event that I was satisfied of the application of limb 5, it would make no material difference to the ultimate disposition and would have a very limited role to play in the sentencing exercise. In any event, I do not accept that limb 5 of that case is engaged in this case. The report simply does not rise to that level.
105At the time of the assessment in June of this year, you had symptoms of depression which met the criteria for a formal diagnosis. You had symptoms of Post-Traumatic Stress Disorder which did not meet the criteria for diagnosis. This task though is not driven by diagnostic labels it is for me to have regard to the impact of the condition however it might be described. Well, a fair reading of the report suggests to me that there might be some increased burden. Maybe there will be. Maybe there will not be. There may be some exacerbation of your depression, but that would depend on how you fare in the prison environment. In any event, the sixth limb of Verdins is not relied upon in this case.
106The report speaks of what may happen, not what is likely to happen. I am not satisfied on the balance of probabilities that there will be any significantly increased or additional custodial burden presented by your mental health issues. Nor was there any suggestion there is a serious risk that imprisonment will have a significantly adverse effect on your mental health. Your counsel was not suggesting that the sixth limb was engaged, and the fifth limb in my judgment is very much speculative at best. I do take those matters spoken of in the addendum report into account though in a general way, just not in a Verdins fashion.
Parity
107
I raised the issue or parity of sentence towards the end of the plea as it had not been raised by your counsel, and that was no doubt as it was a matter of very low importance in this case. All things were very evidently not equal here. I do take into account though the principle of parity of sentence in this case. As a general proposition and this is something of a simplification, like offenders ought receive the same or at least similar sentences. It is a principle designed to avoid a justified sense of grievance existing between co-offenders. I am explaining these things to you so you will understand why it is that you must fare worse than
Mr Mawson by way of sentence. But I could mention one thing and go no further. You are being dealt with for armed robbery. He was not.
108When two or more co-offenders are sentenced, any significant difference in the sentences imposed upon them should be capable of a rational explanation. It follows then that the court is required to assess the individuals and the circumstances. Their ages, backgrounds, criminal history, health, character, prospects of rehabilitation and their roles played in the offending. They are some, but not all the relevant matters to be considered and these things may justify disparate sentences. A comparative analysis of the culpability and circumstances of co-offenders is at the very heart of the correct application of the principle of parity of sentence.
109A strong preference is for all co-offenders to be sentenced by the same judge at the same time. When that is not possible, and of course it is not here, a judge in my position, so the person imposing the later sentence should strive to inform themselves of the sentence already imposed and the reasons for that sentence having been imposed. That is in part, impossible in this case. Mr Mawson made a summary jurisdiction application which was granted. He was sentenced in the Magistrates' Court. I do not have the sentencing remarks of the Magistrate. They do not exist. They are not available. I do not know what findings that Magistrate made, or even what he was told about matters personal to Mawson.
110I have the summary in his case and I know the sentences that were imposed and the orders for cumulation. His assault is not the assault that you committed. His was a single strike with the angle grinder battery to the face of Mr Robinson, who was by then actually out of the car. Your assault involved multiple strikes with a metal bar to the body and arms/hands of a person whilst they were sitting in their car with you and Mawson both at the door. The criminal damage is one where the factual basis is common, other than the add on of the ‘hammer throw’ in his case.
111
So, parity plainly has much more pull in that case. You are similar ages. He certainly has a lengthier criminal history. He has breached Community Corrections Orders and he has been sent to prison, but he has not previously been sent to prison with a head sentence and a non-parole period. You have. What I do know is that he was not the driver of the car that pursued and then hemmed in
Mr Robinson's car. You were that driver. You had control over the movements of the car, so it really makes it impossible to accept the contention that Mr Mawson was the initiator. He may have instigated the initial contact with the hammer being thrown, but the rest of what occurred further up the road was entirely dependent upon your pursuit of the car. You were the driver.
112Nor was Mr Mawson the major player at the car. He was not dealt with for armed robbery, robbery or even theft, and was not inflicting multiple strikes with a metal bar to the body and arms of the seated driver. You were. I do not ignore the sentence imposed on him for the criminal damage. That has a much stronger pull given the commonality of conduct. However, the other sentences shed no great light as to the sentences that are actually required on your case. As I say, Mawson did not even commit, and hence has not been sentenced for the armed robbery. His assault was less sustained and related to a different act. The criminal damage sentence obviously has a much stronger bearing.
General
113Let me then turn to some general matters. I am required to take into account a large range of matters, including things such as the maximum penalty and the nature and the gravity as well as the impact of your crimes. This was unmistakably serious offending occurring as it did in the early hours of the morning out on a public road. You drove some distance to follow Mr Robinson, so it really cannot be said that there was no planning at all, but the initial contact was plainly a chance occurrence. So it was opportunistic and spontaneous in that sense but it is hard to know why you were behaving in this extraordinarily aggressive fashion. There was no reason for you to be focusing on that other vehicle. None.
114This was a soft target armed robbery in the sense that your victim was quite vulnerable. The offensive weapon used to threaten force, was the very same weapon used seconds before in a pretty nasty unprovoked physical assault. You used that weapon in the course of the assault leading into the armed robbery, where the same weapon was held but not applied. Many soft target armed robberies involve a demand and then compliance without any physicality or without any close physical proximity. I mentioned this in the course of discussions earlier today and on day one of the plea.
115For instance, a cashier at a petrol station, someone who might be relatively comfortably tucked away behind a wired in or glassed-in counter, one who complies with a demand when it is made. That was not the nature of this offence. Mr Robinson was exposed to you at very close quarters, you and your metal pole out on a public road at 3 am in the morning. He was, and felt extremely vulnerable. He had already been softened up physically by way of the assault in the lead into the armed robbery. He was outnumbered and quite exposed. He was totally innocent, and this was a completely random and inexplicable event, whistled up out of the blue by you.
116Armed robbery is punishable by a 25 year maximum prison term and whilst this example of the offence is of course nowhere near the top of the range of the offence seriousness, it certainly does not sit at the very lowest levels of offence seriousness either. That was conceded by your counsel earlier today. The criminal damage was pretty serious, and again, just without any explanation at all. His prized possession, his dream car, a car he had saved for and taken pride in, seriously damaged, and for no reason at all.
117The assault with a weapon, was a nasty one, given the setting and the multiple strikes with that weapon and as a matter of fact the physical presence of another male. He was essentially trapped in a seated position in his car, surrounded by two aggressive men. This is at 3 am out on a dark road.
Purposes
118I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. I believe they are quite realistic and I am encouraged to a degree by your efforts on the CISP bail.
119You are a work in progress as the 17 October slip up and the ongoing drug use makes plain, but you are certainly not without hope. Not at all. There are some people who sit in that dock who really have no prospects of rehabilitation. You are not one of them. A lot of people who sit in that dock have never had a job in their life. You are not one of them. You have got the makings of a decent contributing member of the community. But you have got to leave drugs behind you.
120Sentencing is however not all about you and your prospects. There are other purposes of sentence at play and other things which I must take into account. I am required to punish you for your crimes. Well, punishment is an important sentencing purpose. I have to do that justly and proportionately. So too, community protection. Of course that is important. This was just a random and violent event befalling a totally innocent driver and his three female passengers in the early hours of the morning. I must consider the need to protect the community from you.
121I must also denounce your conduct and of course that is an important purpose of sentencing as well. I must also give appropriate weight to specific deterrence. By that, I mean the need to deter or dissuade your from offending in the future. That is of some significance here, given the serious nature of the offending and your recent record of offending before the courts.
122General deterrence is also an important purpose of sentencing in this case. That involves the need to deter other future potential offenders. This court is required to send a message to others in the community who may consider this serious style of offending. They must be deterred or dissuaded from offending.
123I must have regard to the maximum penalties and as I have said to the impact of your crimes.
124I must also pay regard to current sentencing practices. That is not a single controlling factor. I mentioned that I have looked at the Sentencing Advisory Council Snapshot No. 261 of December of last year for the crime of armed robbery. It is worth noting and I raised this on the plea, that the snapshot disposes that the most common custodial sentence selected fell between three to less than four years.
125I have looked also at the more up-to-date online sentencing statistics for the two indictment offences, as well as the overview of cases from the Judicial College of Victoria sentencing manual. Sentencing is however not a mathematical or statistical task. No amount of looking at other cases, and no amount of looking at statistics would ever provide the answer to my task. Other cases are not precedents and there is no such thing as one correct sentence to be imposed.
126Statistics, have inherent limitations. They omit all of the relevant matters in aggravation and in mitigation, the things which would actually explain a particular sentencing outcome. They are numbers on a page, and they tell me next to nothing about either the offence or the offender represented in that data. I am exercising a sentencing discretion in your case, taking into account the matters in aggravation and mitigation in your case. Things that are known to me in this case. The things that I have been dealing with in these reasons to date. Statistics do not drive that task, nor other sentences imposed upon other offenders for other crimes.
Totality
127I must pay regard to the principle of totality of sentence. I have taken a last look at the overall effect of my orders, to ensure that the overall effect of the sentence is commensurate with your overall criminality. Plainly here there is a temporal link between the offending These offences were committed within seconds of each other in this strange criminal escapade or episode. However, they involve differing elements and different conduct. They no doubt resulted in separate impacts. There must be some cumulation of sentence but I must pay regard to totality given the episodic nature of the offending.
128Prison is always a disposition of last resort for any court. Mr Grant who conducted a very comprehensive plea on your behalf was conceding the inevitability of a prison term and one extending beyond your pre-sentence detention. He was arguing though for a combination type order with the imposition of a prison term and your eventual release onto a Community Corrections Order. He argued that the various purposes of sentencing could be achieved by such an order as that. That such a disposition could achieve all the purposes of sentencing in this case. He referred me to the well-known decision of Boulton[6].
[6] Boulton v The Queen [2014] VSCA 342; 46 VR 308
129I have had you assessed and of course I warned you and your family to take no comfort from my calling for that assessment report. I said that I was exploring all options and though a head sentence and a non-parole period look more likely to me back in October when the plea was conducted, I wanted the opportunity of considering the various submissions and the materials placed before me. I was also met by the unavoidable delay created by the need for your counsel to file that addendum report for Mr Simmons and the need to consider that report and any further submissions made in relation to it.
130It seemed useful to use that unavoidable delay to actually have you assessed for your suitability, and at least have the assessment report to hand on the plea resumption date. So I called for that report and I have now received the Community Corrections Order assessment report and the Forensicare report. You are judged to be a high risk of reoffending. You are viewed as unsuitable for such an order.
131Well, that is a bit surprising I must say, given some of the descriptions within the report. You seem to be engaging appropriately in discussions with the assessment officer and the absence of protective structures seemed to fly in the face of all that I know about you. Your counsel made some submissions about that early today, and that conclusion. It seemed to be out of kilter with what was within the actual body of the assessment report. But any event, that finding of unsuitability does not bind me.
132Your counsel maintained this morning his submission as to the availability of a combination type order and he maintained that in the face of that assessment which judged you to be unsuitable for such an order. As I have said, prison is a disposition of last resort. That is the law. A judge can only confine a person if the lesser alternative not involving confinement would not achieve the various purposes of sentencing. Well, as I say your counsel concedes that prison is required here.
133If I must imprison you, and I must, it can be for no greater time than is required to achieve the purposes of sentencing. I have considered whether a combination type order is available to me. I do have at my disposal a period of 12 months over and above your existing pre-sentence detention. As I said earlier this morning, the finding of your unsuitability for such an order does not in any way prohibit or impede me from placing you on such an order, if I judge it to be an appropriate sentence. Can I place you on such an order though? Is such an order as that an available sentencing option for me in the setting of this case? Very commonly for crimes involving armed robbery there would be a head sentence and a non-parole period, both of them measured in years. The Crown submits that a head sentence and a non-parole period is required in this case.
134Having considered all of the materials placed before me, including the submissions and materials placed before me this morning, I do not believe that it is open in the sound exercise of my exercising discretion to deal with you by way of a combination type order. I should make it plain that is not because you are judged to be unsuitable for such an order. Rather your offending is just too serious and there are only 93 days of pre-sentence detention. I do not believe that a combination style order would achieve the various purposes of sentencing. It would not in my view, give adequate weight to punishment, community protection or deterrence, especially general deterrence.
Disposal
135Application is made for a disposal order pursuant to the provisions of s78(1) of the Confiscations Act. There is no opposition taken to the order being granted in relation to the various matters that are listed in the schedule to that order. I order pursuant to the relevant provisions the forfeiture to the State of the property referred to in the schedule and I direct that it be handled in the manner contemplated by the order which I have signed.
136Look I will have you stand up now Mr Kee. I am sorry I have taken so long to get to this point.
Sentence
137On Charge 1, which is the charge of armed robbery, I convict and sentence you to 26 months or two years two months' imprisonment. That will be the base sentence.
138On Charge 2, the charge of criminal damage, I convict and sentence you to six months' imprisonment.
139On the summary assault with a weapon, I convict and sentence you to six months' imprisonment.
Cumulation
140I direct that three months of the sentence imposed on the criminal damage charge and three months of the sentence imposed on the summary of assault charge, are to be served cumulatively upon the base sentence and upon each other.
Total Effective Sentence
141These orders result in a total effective sentence of 32 months, or two years and eight months' imprisonment.
Non-Parole Period
142I am required to fix a non-parole period. I am not allowed to speculate as to whether or not you will be released on parole. That matter will rest entirely in the hands of the Adult Parole Board. I have no role to play in that decision.
143I fix a period of 16 months, during which you will not be eligible for release on parole.
Pre-Sentence Detention
144You have served a total of 93 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court. I think I will have you sit down now, grab a seat if you like.
6AAA
145I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for four and a half years. I would have fixed a non-parole period of three years in that setting and that declaration made pursuant to s6AAA is also to be entered into the records of the court.
Licence (s89A)
146Finally, I am going to make a licence order in this case. Your use of the vehicle is conceded to be very much connected to the offences which were committed. Though there is no mandated position, I believe it is appropriate to make an order against your licence in relation to the armed robbery and the criminal damage offences. That order will be made under the provisions of s89A of the Sentencing Act. All licences to drive will be cancelled and you are disqualified from driving in this State for a period of 12 months.
147That period will commence today. It is conceded that you were affected by drugs at the time of the offending and I make the additional finding under s89C that those two offences were committed whilst under the influence of drugs which contributed to the offence.
148Let me just see, are there any other matters at all from either of you?
149COUNSEL: No, Your Honour.
150HIS HONOUR: Well that completes the matter. You'll go down and see your client downstairs Ms Brown?
151MS BROWN: Yes, Your Honour.
152HIS HONOUR: You'll discuss his rights in relation to the sentence that's just been imposed and once I have the reasons back from the VGRS I'll revise them and have them available in pretty short notice, but it generally takes about a day after I get them to revise them.
153MS BROWN: As Your Honour pleases.
154
HIS HONOUR: Well that completes the matter then so, Mr Kee can be removed and Ms Brown will come down and see you downstairs Mr Kee, so
Mr Kee can be removed thank you.
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