Director of Public Prosecutions v King

[2021] VCC 150

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01266

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKIE KING

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2021
DATE OF SENTENCE:	16 February 2021
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2021] VCC 150

REASONS FOR SENTENCE

‑‑‑

Subject:    CRIMINAL LAW    

Catchwords:   Sentence – Plea of guilty – Armed Robbery – Possession of drug of Dependence – Summary charge of possession of a prohibited weapon without an exemption – Category 2 offence - 19.3 grams of cannabis – Imitation pistol - Background of accelerated offending – Deprived upbringing - Imprisonment – Non- parole period

Legislation Cited:                  s75A Crimes Act 1958 – s.73(1) Drugs, Poisons and Controlled Substances Act 1981 – s.5AA Control of Weapons Act 1990

Cases Cited:Veen No.2 [1988] 164 CLR 465 - Bugmy (2013) 249 CLR 571 – Re Bourke [2020] VSC 130 - Dalgliesh (2017) ALJR 91 1063

Sentence:Total effective sentence of 2 years and 6 months imprisonment with a non-parole period of 15 months imprisonment. Pre-sentence detention of 129 days.            

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr A. Patton	Balmer and Associates

HIS HONOUR: 

1. Mr King comes before the Court aged 25.  He was 24 at the time of this criminality, having been born on 30th the of January 1996.  Ms Malobabic appeared on behalf of the Director; Mr Patton on behalf of Mr King at the plea and of course today.

2. I record that these proceedings have been conducted by way of WebEx.  I thank everyone involved. Due to the crisis that this community has been enduring there has been no other way to finalise legal proceedings. With the aid of technology and, in particular the WebEx system, we have been able to finalise this plea.  It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place.  However, we have all had to cope with that.

3. Mr King pleaded guilty to the charges in Indictment No. L11593685.

4. Mr King's counsel on his behalf pleaded guilty to summary charge of possession of a prohibited weapon, a flick knife, without approval, referred to this Court pursuant to s.145 of the Criminal Procedure Act 2009.

5. The plea took place on the 18 January 2021. 

6. Exhibit A, the prosecution opening, was accepted by Mr Patton, on your behalf, Mr King, as disclosing the facts upon which I am to sentence you.  

Charges on Indictment No. L11593685

1. Coming then to the charges on the Indictment L11593685. Charge 1 is one of armed robbery, an offence against s.75A of the Crimes Act 1958, Its inherent seriousness is demonstrated by the Parliament prescribing a maximum sentence of 25 years' imprisonment. This offence is a Category 2 offence which pursuant to s.5(2H) must be subject to a custodial order. There was no issue as to this raised on the plea.

2. The offence is not only serious but somewhat bizarre.  Mr King knew the victim's boyfriend Mr Pierson and was known to the victim.  Mr King had an issue with Mr Pierson, he arrived at the victim's home where she resided with her four children.  Mr King was accompanied by two others who were not charged.

3. Mr King proceeded to have a discussion with Mr Pierson as to being recompensed for an alleged wrong. The CCTV footage, Exhibit B, demonstrates such lasted 23 minutes, with the boyfriend refusing to pay.  Mr King then fetches an imitation pistol from his car, set out as detailed in paragraph 7 of Exhibit A, issues threats as to others coming to collect the debt and the crime is not complete till the victim transfers $2,500 from her bank account 14 minutes later.  The victim was concerned for her family, self, and boyfriend and was shaking and crying.  The victim feared for her life and transferred the money to ensure that Mr King did not return.  The victim was apparently not aware of the pistol being an imitation. Despite being asked by the boyfriend not to contact police, the victim did so, approximately one and a half hours later, out of fear.

10There is no victim impact statement lodged.

11Charge 2 relates to the finding of 19.3 grams of cannabis at Mr King's residence upon execution of the warrant.

12Pursuant to s.73(1)(a)(i)-(ii) of the Drugs, Poisons and Controlled Substances Act 1981 a penalty of not more than 5 penalty units applies for that offence.

13The summary charge pursuant to s.5AA Control of Weapons Act 1990 concerns a flick knife also found on warrant. The maximum applicable penalty is 240 penalty units or imprisonment for 2 years.

14Prosecution tendered in addition to Exhibit A and B:

a.Exhibit C:  Prosecution chronology; and

b.Exhibit D:  The Prosecution submissions on sentence dated 15 January 2021.

15The Prosecutor submitted the objective gravity was in medium range, and referred the Court to the six factors set out in paragraphs 6 to 12 of Exhibit A. The Prosecutor noted in particular the escalation of offending this charge represented when one looks at Mr King's criminal history, and that such criminality was committed whilst on bail, see s.16(3C) of the Sentencing Act 1991.

Criminality  

16Coming then to the criminality itself, Mr Patton in his plea did not cavil with the prosecutors submission as to objective gravity, but accepted given the offence, with a background of accelerated offending, the only appropriate sentence was imprisonment, albeit that he submitted, owing to mitigating factors, such should comprise a shorter than normal non-parole period, see Exhibit 1 paragraph 38.

17I see therefore no reason to quibble with the prosecution assessment in this regard.

18Coming then to the criminal history of Mr King.

Criminal History of Mr King

19It is concerning to the Court that at the age of 25 Mr King has such a number of prior offences.

1. Analysis of Mr King's 17 pages of such offences shows Children's Court offences from 2010 when he was 14; Mr King's first conviction in 2016; a series of community correction orders, and the first sentence of gaol passed on him in 2016 as part of a combined order.  The offences involved dishonesty, drugs and road offences.  From 2016 the offences have involved assaults and reckless conduct endangering life.

2. In June 2018, Mr King was jailed for 6 months for burglary and dangerous driving while pursued by police, and a further sentence for theft of 54 days.

3. Shortly after Mr King's release from that sentence, on 11 January 2019 Mr King commits the crime of aggravated reckless exposure of an emergency worker and conduct endangering life for which he was sentenced in August 2020 for an aggregate 10 months' gaol.

4. While on bail for the last-mentioned offence Mr King commits these offences on 2 July 2020.

24In such circumstances it is necessary to take into account the statements of the High Court in Veen No.2 [1988] 164 CLR 465, [477]:

"…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence."

25On that same page the Court went on to say that such priors are relevant to show:

"…whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

Plea of Mr Rickie King

1. Coming then to the plea of behalf of Mr King put by Mr Patton, he tendered firstly his written submissions, Exhibit 1 on the plea, and spoke to same.   

2. Also tendered was Exhibit 2, which were four negative urine screens from August 2020 to November 2020.

28Exhibit 3 was a number of certificates of courses undertaken by Mr King on remand.

29Judge Gaynor's sentence of 24 August 2020 was also discussed.  Prior to such on 26 July 2019 her Honour had deferred sentencing for 12 months as to those offences.  Having committed the further offences I am dealing with; Mr King was brought back before her Honour on 26 July 2020 when Mr King took up placement at Odyssey House. Unfortunately, despite the best intentions, such was discontinued and hence her Honour sentenced, as I have recorded above, on 24 August.  That sentence lapsed on 30 September 2020.

30Mr King has by way of remand pre-sentence detention of 139 days, which was agreed by counsel today.

1. As to Mr King's social background, Mr Patton was at pains to refer me to her Honours' analysis in her remarks as I have referred to, in particular at paragraphs 25 to 28 and 53 to 56.  Mr Patton referred to Mr King's deprived upbringing and the impact of drugs in your family upon you, Mr King, not as an excuse for this criminality but an explanation in the Bugmy sense.

32The concept of giving 'full weight' to such requires some explanation which is found in the immediately following passages in Bugmy (2013) 249 CLR 571 at p.595, [44], where the High Court said:

'… However, this is not to suggest…. that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'

33In the result, the High Court remitted Bugmy for reconsideration by the Court of Appeal, as the sentencing Court, to determine:

"…whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that [the sentencing judge] allowed."

34I accept such deprivation as the explanation for his criminality, and indeed his prior history. Albeit put as an explanation only, I do moderate the sentence appropriately after balancing all other factors relevant to this sentence.

35Mr Patton also raised the issue of the plea, that it was an early plea in the circumstances, indicated remorse, acceptance of responsibility and was utilitarian. Mr Patton also referred to the fact that this plea is taking place during particularly difficult times for the Court when listing pleas is difficult and Court time is difficult to organise, the impact on delaying trial dates caused by COVID-19 and the circumstances as reported and taken into account, in Re Bourke [2020] VSC 130, [32], were relied upon. For all of those matters I provide the appropriate discount in regard to the plea entered by Mr King.

36I also accept that any period in gaol, not only on remand to date, but in the short term, one would hope, is going to be impacted by the effects of COVID-19.  There are currently lockdowns required which I understand is of half a day in all of the Correction institutions.  There are restrictions of programs although recently some have recommenced, I understand, total restriction of visitors and indeed ongoing risk of COVID-19 being passed within the prison.  I should say that risk is obviously low given the excellent way the Corrections department has attacked this problem and no evidence to date has emerged of any prisoner having been infected in prison. 

37As to Mr King's youth and rehabilitation, or I suppose I should say relative youth given that he is now aged 25, such matters are always paramount in this Court's consideration.  As I have said, such considerations no doubt has played a large part in Mr King's sentences, pronounced prior to May 2016 and thereafter in the combined sentences leading to June 2018.  One is conscious of the time Mr King has spent in prison recently, however, his rehabilitation is squarely in his own hands.  Mr King has to free himself from the effect of drugs and maintain the positive steps taken in remand, otherwise there is a grave risk of Mr King being institutionalised.

38On basis of his history I must realistically be wary as to him rehabilitating, albeit, Mr King, that it is my fervent hope that you can do so.

1. I am keen within the above referred to balancing boundaries to provide leniency to Mr King, thereby to hopefully encourage such rehabilitation, as submitted by Mr Patton in paragraph 39 of his written submissions.

40Mr King is of course entitled to individualised justice and a just sentence on each charge based upon the facts relevant thereto, as exposed in this plea, see Dalgliesh (2017) ALJR 91 1063, 1072, [49].

Sentence

41Mr King, normally in these situations if you were in Court I would ask you to stand.  You may sit and stay where you are as I pronounce sentence.

42Mr King, having taken account of all of the factors put to me; you will be convicted upon all charges.

43On Charge 1 of armed robbery, I sentence you to imprisonment of two and a half years.

44On Charge 2, you will be convicted and discharged.

45On the summary matter you will be sentenced to six months' imprisonment.

46You will be required to serve 15 months before being eligible for parole.

47Pursuant to s.18 insofar as the sentence imposed upon you, I declare that the 139 days you have served by way of pre-sentence detention be deemed as service of this sentence and a declaration to that effect be recorded in the records of this Court.

48In regard to s.6AAA of the Sentencing Act, Mr King, can I tell you, and it is probably, having heard the sentence I have just passed on you, not something that you want to hear.  However, I am required to tell you what the benefit to you of your plea is.  Insofar as the sentence passed upon you, you know that I have given you a total effective sentence of two and a half years, with a minimum period of fifteen months to serve before being eligible for parole. Can I indicate, as required by Parliament, what you would have received had you not pleaded guilty.  Can I also indicate how difficult this is, because your plea of guilty is only one of the multitude of factors I have had to take into account; however, doing as best I can to comply with Parliament's wishes, can I indicate to you that had you not pleaded guilty the sentence that would have been imposed upon you is not one of two and a half years with a minimum of 15 months, but I would have imposed a sentence of three years and six months with a minimum of 28 months to serve before being eligible for parole.

49As I have indicated, I have signed the relevant disposal order.

50Do either counsel need any comments, or seek any clarification in regard to such sentence?

51MR PATTON:  No, Your Honour.

52HIS HONOUR:  Yes, thank you.  As I indicated, Mr Patton, we'll adjourn the Court, and we'll place everyone else then in the lobby for you to talk to Mr King.  As I understand the position, as best I understand it, there is no recording made of that discussion, as you would expect.  However, I wouldn't say I'm 100 per cent sure about that but that's what I'm advised, Mr Patton.

53MR PATTON:  Thank you, Your Honour.

54HIS HONOUR:  Yes.  Good luck, Mr King.  I hope you effect the rehabilitation that you've started in prison.

55OFFENDER:  Thank you, Your Honour.

56HIS HONOUR:  Thank you.

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