Director of Public Prosecutions v Laidlaw
[2022] VCC 1637
•22 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-01406
Indictment No. M10681154
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FLYNN ROBERTSON LAIDLAW |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 1 July 2022 | |
DATE OF SENTENCE: | 22 August 2022 | |
CASE MAY BE CITED AS: | DPP v Laidlaw | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1637 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Plea of guilty – Armed robbery (with offensive weapon namely a knife) – Young vulnerable victim – Limited criminal history – Drug affected at time of offending - History of poly substance abuse – Suffers from generalised anxiety disorder complicated by history of poly-substance abuse – Impulsive and unsophisticated offending - Expressions of concern for victim in record of interview
Sentence: Convicted and sentenced to Community Corrections order of 3 years’ duration with conditions of supervision, unpaid community work, drug and mental health assessment and treatment, programs for re-offending and judicial monitoring review – Ancillary orders - Disposal and Forfeiture – s.6AAA Sentencing Act 1991(Vic) declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Deanne Caruso | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms Amara Hughes | Paul Vale Criminal Law |
HER HONOUR:
1Flynn Robertson Laidlaw, you have pleaded guilty to one charge of armed robbery, which has a maximum penalty of twenty-five years’ imprisonment.
2The maximum penalty reflects the seriousness with which Parliament regards the offence and is a matter I must take into account in sentencing you.
3You were twenty-six years old at the time of the offending, and I understand you are now twenty-eight.
4The victim in this matter was thirteen years old at the time of the offending, fourteen at the time of the plea hearing, and is now fifteen, as I understand it.
5The circumstances giving rise to the offending are that, in the middle of the afternoon of 3 April 2021, the victim, Owen Prior, was with three of his friends, who were aged between thirteen and fourteen years old, at the HE Parker Reserve in Heathmont. They were riding their bikes at the BMX jump tracks near the Maroondah Nets building at the reserve. The victim and his friends were also building a jump track.
6At 2.57pm, you parked your Toyota Corolla in the car park of the Maroondah Nets building on Heathmont Road.
7Sometime later, you, who were not known to the group, approached the victim and his friends, and asked them whether they had any magic mushrooms. The victim observed that you had a blank stare and smelt like cannabis or tobacco. One of the victim’s friends told you that there were some mushrooms “over there”, and pointed to a nearby tree. You walked to the tree and started digging the ground at the foot of it.
8A short time later, you again approached the victim and his friends and asked: “Are you sure you don’t have any mushys or weed on you?” The group said “no”. You eventually walked away from the group. Sometime after this, you walked towards the victim and his friends again, and asked them about the tracks they had built. The group told you that they were building the jump tracks. You became angry and aggressive. You said, “[y]ou’re not meant to build jumps down here”. You then said words to the effect, “I’ve got six mates around the corner give me your bags”, then told the group they had ten minutes to leave. The victim’s friends picked up their bags and started to leave.
9You then walked closer to the victim, causing him to be cornered at some nearby trees. You continued to make demands for his bag. The victim then saw you had a silver-bladed knife in your hand. He saw that you were very close to him by this stage, such that if he “had reached [his] arm out [he] could have touched [you]”.
10When the victim saw the knife, he handed his backpack to you, as he believed you would have hurt him with the knife if he did not do so. His bag was a black Nike backpack and contained an Ultimate Ears Boom portable speaker, a Nike drink bottle, a bike pump and a bike helmet. You took the backpack and said “[f]uck off”.
11The victim then got on his bike and road towards his friends, telling them that you had a knife. They rode away and one of the victim’s friends called 000.
12At about 3.42pm, you got back into your car and drove from the Reserve.
13At around 4.05pm, uniform police members saw you driving on Heathmont Road towards its intersection with The Greenway. Once you noticed the presence of police, you turned your car sharply onto The Greenway, causing your tyres to screech.
14Following a brief chase by police, you parked your car in the driveway of an address in Heathmont. You got out of the car through the driver’s side door and walked towards the back of your car.
15Police approached you and observed that you appeared to be drug affected.
16Amongst other things, you told police that you were coming from a mate’s house in Heathmont. When you were advised by police that they were patrolling in relation to an incident at HE Parker Reserve, you said you had not been there at all. You said you had been for a walk through a park, or a bush, about ten minutes ago near Tagell Road. You said you were planning to go back to your mate’s house after your walk in the park.
17You were arrested and cautioned. Shortly after this, you told police you had been walking in the HE Parker Reserve earlier that afternoon.
18During a pat-down search, police asked if you had anything on you that might harm them. You told them that you did not. Police then felt an object protruding from your front left pants pocket and asked what it was. You said “I’ve got a pocketknife on me. But that’s for my own protection”. Police then removed a silver pocketknife from your front left pants pocket. It was about 17 centimetres in length, with a blade approximately 7.5 centimetres long. I have seen a photo of the knife which was included in the prosecution opening. I must say that it is a rather frightening implement.
19At about 4.25pm, police found and seized the victim’s backpack on the driveway of another address in Possum Lane. The backpack did not contain any of the victim’s other belongings.
20Police conducted a search of your car and found the victim’s portable speaker, which was found near the side of the front passenger seat. None of the other belongings were located by police.
21Subsequently, you were taken to the Knox Police Station and took part in a record of interview with police at 8.17pm.
22During the interview, you said:
23That you were going for a walk in the HE Parker Reserve and were not necessarily looking for some magic mushrooms, but always liked to go for a walk in the Reserve, as you had built bike jumps there when you were fifteen years old. You said you asked the victim and his friends whether there were any mushrooms around and you went near the bushes to look for these.
24You also said that you saw the victim and his friends at the jumps and believed they were ruining all the jumps, and got pissed off about this. You then went up to them and said, “What the fuck are you guys doing? Why are you ruining the jumps?” You said that the group said to you that they were not, and they were trying to make them better. You then replied that they should leave them alone as the jumps had been there for over ten years.
25You said that the children then became angry at you and you started to get angry at them. You then said, “[g]ive me your shit” and “[f]uck off, give me your shit and fuck off”. You denied telling the group, “I’ve got six mates around the corner. Give me your bags”, as they had alleged.
26You said that one of the children then gave you his bag. You then got into your car and drove away.
27When asked by police what you had in your hand at the time of the offending, you said that you had a knife in your pocket because you were always carrying a pocketknife when looking for magic mushrooms.
28When asked whether you wished to say anything further about the incident, you said that, in fact, you had the knife in your hand and you said, “[j]ust give me your shit and fuck off”, but you indicated that you were not going to stab the victim.
29At a later stage in the interview, you said you did not realise that you had the knife in your hand at the time of the offending, and thought it was still in your pocket at the time. The knife seized from you at the time of the arrest was the one that you used during the offending.
30You said that the children could have been anywhere between fourteen and twenty years of age. You said that you were trying to scare the group because they were “fucking up the jumps” that you had built when you were fifteen years old and that you had “snapped”.
31You said that you were intending going back to the Reserve because you felt bad about what had happened and were going to give the bag back, but then you saw the police and freaked out, turned around and drove away. You said that, when you saw another police car, you freaked out and threw the victim’s bag out the window because you were scared of getting caught.
32You said you only took the backpack and did not know what was inside it – that you did not even open it and look in. When asked by police about the victim’s portable speaker, which had been found near the front passenger seat of your car, you said that the speaker might have been in the bag and fallen out of the bag when you threw it out. You said you did not know about where the victim’s remaining belongings were.
33You also said you knew that the offending “would’ve scared the shit out of [the group]” and that you felt “horrible”. You said you wished to apologise to the victims and you wanted to go back home that night.
34Mr Laidlaw, your offending is serious and deserving of a punishment which is just in all of the circumstances. Your conduct must be appropriately denounced.
35You confronted the victim when he was separated from his group and were well aware, in my view, that you were holding a knife, doing so in order to ensure he handed his bag over to you. The victim was only thirteen years old and, therefore, of a vulnerable age and placed in a most vulnerable position by you. I note that the Summary of Prosecution Opening, which was prepared on the basis of the victim’s account, and his friends, was accepted by you as being the more accurate account of what occurred. On this account, the victim and his friends had picked up their bags and started to leave which, on your account, was what you wanted to happen. Therefore, your counsel’s submission, on your instruction, that you had no interest in taking his bag and contents for your own use but, rather, in a fit of anger, does not really add up. The boys were doing what you wanted – that is, leaving the area, yet you insisted on singling one of them out in order to obtain his belongings. In my view, this was because you wished to take the bag for your own use or exploration, in the context of someone who was intent on finding drugs on that occasion. The fact that police did not find any of the other contents of the bag, except the portable speakers in your car, and found the empty backpack a few doors down, is highly suggestive of you having rifled through the contents of the bag, discarding as you went, and keeping the speakers. It is not consistent with you discarding the backpack, even if it were open, and having all the items spill out, with the exception of the speakers. In this respect, I do find your explanation somewhat spurious.
36Your counsel also told me that you had decided to return to the Reserve to give the backpack to the victim when you saw the police and panicked. Again, I have some difficulty with this, in circumstances where, in my view, you had rifled through the bag at an earlier stage, albeit I accept that you may have thrown out items when you saw the police. I must say that I do not find these aspects of your explanation plausible and, in the circumstances, I have put these aspects to one side.
37In sentencing you, I take into account that you have one prior matter which was dealt with at the Ringwood Magistrates’ Court on 2 December 2020. On that day, you pleaded guilty to one charge of recklessly causing injury, one charge of contravening a Family Violence Safety Notice, and one charge of “act prejudicial – security/order/management/jail”. Without conviction, you received a fine of $1,000. I will return to the circumstances giving rise to these offences in due course. Certainly, a prior matter for violence is relevant to my assessment of your prospects of rehabilitation in the matter before me and the weight which must attach to relevant sentencing principles. You have one subsequent matter arising from offending in January of this year, where you were charged with three charges of possessing a drug of dependence and fined $500 without conviction.
38I was told, at the time of the offending before me, you were drug affected. This is not a matter that aggravates your offending, but it is not a matter which mitigates it either. I put you on notice that, if you did not know it, there is a connection between you taking drugs and committing criminal offences, such that if you commit an offence in the future and are drug affected at the time, your drug taking may well be treated as an aggravating feature of that future offending. Do you understand that?
39ACCUSED: Yes, I do, Your Honour.
40HER HONOUR: I accept that the offending for which I now sentence you was of a most unsophisticated nature. It was impulsive and committed in broad daylight such that there is an absence of the aggravating feature of premeditation or sophistication in relation to your offending, nor were there any attempts to evade detection of any sophisticated nature.
41I allow for a significant discount in the sentence you would otherwise receive because of your early pleas of guilty, which has meant that the witnesses, especially the victim, have been spared the time and trouble of giving evidence, and the community has been saved the time and expense of contested proceedings. The course you have taken is of particular utilitarian value in light of the pandemic, as you have contributed to the reduction in the backlog of trials which the Court faces. The Court of Appeal of Victoria has said that in such circumstances, a sentence must palpably reflect an allowance in your favour, and I have attended to this.
42I also accept that you do have genuine remorse for your offending, albeit that I am not convinced that your record of interview was completely frank. However, you did make significant admissions in your record of interview and expressed concern for the victim. Having said this, you did achieve what you wanted to on that day, that is, you wanted to scare the victim into handing over your bag, which is why you behaved as you did. However, I accept that your reflection about this was a genuine one, and you have expressed appropriate remorse subsequently, including to Ms Laura Fleming, forensic psychologist, which appears in her report dated 10 March 2022.
43In sentencing you, I have taken into account the contents of that report, which indicates that you suffer from Generalised Anxiety Disorder, having had an anxious disposition from childhood. Ms Fleming said that your complex profile was further complicated by your history of poly-substance use (inferred to have developed as a form of self-medication for your untreated Generalised Anxiety Disorder). Such a disorder is certainly not to be sneezed at and is something that I understand is quite crippling and very difficult to deal with.
44I accept that any period of imprisonment for you would be more difficult than would otherwise be the case due to your mental health difficulties, and it would also be your first time in jail.
45In sentencing you, I take into account your background.
46As at the time of the plea hearing, you were living on your own in a rental property in A’Beckett Street, Melbourne. However, at the plea, it was contemplated that you would be moving to Ringwood, as your work with a landscaping business is in that area. I understand that you are now living with Mr Hufer in the Ringwood area once more.
47You are single and have no dependents.
48Your counsel indicated that you have had an unremarkable upbringing until 2011, when you witnessed your father suffering a stroke, which had a profound impact upon you.
49I was told that you completed school to Year 12 and, following this, you started an apprenticeship in landscaping, which you did not complete.
50You have held employment from time to time since completing high school, including as a labourer and a kitchenhand. However, your employment history has been marred by terminations of employment because of your lack of work ethic or substance use, and no doubt your Generalised Anxiety Disorder.
51In terms of your substance use, you started using cannabis when you were fifteen. This then moved to using MDMA when you embarked upon the clubbing scene.
52When you were 22, you suffered a back injury after a fall from scaffolding at your work. You were prescribed various opioid medications to help with the pain. However, unfortunately, when you were no longer prescribed this medication, you felt the need to source similar medications (“off the street”), as you had become addicted, unfortunately as is the case for all too many people in your position. Your drug use then moved to heroin and methylamphetamine.
53You told your counsel that you have been sober since January of this year. Unfortunately, I was not provided with any material at the plea hearing to verify this. I did advise your counsel that, at the further hearing of the matter, I would expect to receive some evidence in this regard.
54I was told that you have not taken part in any drug rehabilitation programs, however, you have been subjected to two interventions by your father and close friend, Matthew Hufer. These interventions have been attempts to get you to abstain from drug taking. I was told that the first intervention occurred in April last year, after offending which gave rise to your prior matters. That offending involved you being affected by drugs to the point where you pushed your mother and she broke her arm. Your brother called the police and you were given a Safety Notice, however you immediately returned to the family home, which then led to the charges. You were using methylamphetamine at the time, and that is what you were affected by. I was told that your relationship with your brother has not recovered since this time, however, you and your mother were now talking.
55I was told that after your arrest for the armed robbery, you were released on bail with your father as a surety. At this time, your father and friend, Mr Hufer, staged the first intervention in a bid to stop you from your spiralling drug use. However, I was told that neither your father, nor Mr Hufer, knew which resources would be appropriate in your particular case, in a bid to assist you. I was told that you did appear to be getting yourself on the right track. You were staying with Mr Hufer at the time, and he had stipulated that the house rules meant you were not to use drugs. However, he came home on one occasion and found a bong which belonged to you at his house, and he also found Xanax. This led to you leaving the premises.
56After this, you spent various periods in various other accommodations.
57In January this year, after you were charged with the drug possession charges, Mr Hufer and your father staged a second intervention. On this occasion, your father was in tears. Since his stroke, he had not enjoyed good health. I was told that when you saw your father crying you resolved to turn things around and have abstained from drugs since January this year.
58I was told that prior to this, in about August 2020, you were hospitalised for overdosing. I was also told that you had sought assistance regarding withdrawing from opioid medication and had received Suboxone Depots for opioid replacement therapy.
59I was told at the original plea hearing that you are motivated to have professional supports in place to help you with relapse prevention techniques and skills. Unfortunately, at the time of the plea hearing, and now, you had done little to advance these wishes to obtain professional help, although I understand that there’s a waiting list of about eight months to see a psychiatrist, so plainly something else has to be put in place that involves you receiving professional help sooner than that, and this will be part of the task that Community Corrections will help you with. I stress that they should. I was told that, in early June, you had obtained a referral from your general practitioner for a psychologist. However, that seems to be the extent of action taken by you, and I must say that such a step, at such a late stage, really smacked of doing something in the knowledge that your plea hearing was not too far away. However, it was a positive step, and it is positive that you are willing to accept professional help, which is a matter that I take into account in your favour.
60In terms of your mental health, I understand that you are constantly medicated, however, the medications you receive have not appeared to control your symptoms. I understand that this is the reason you sought to be referred to a psychologist on 9 June this year. Attempts by the Community Corrections Order assessor to check on your progress about this and levels of sobriety were not fruitful as you would not answer your phone and chastised him for trying to contact you during work hours. While I understand that phone calls during work hours might be problematic for you and you don’t like answering no caller ID calls, you must reply to calls from Community Corrections when they need to make contact. They will understand your work commitments. If you explain those to them, they will work with you. I’m sure that you can work with them however, as I’ve said, in this regard, so that contact can usually made at a mutually convenient time.
61A major event in your life was witnessing your dear father suffering a stroke. You were only 17 years at the time, and this had a profound impact on you, leading you to leave school. However, as I noted from the most articulate and helpful letter prepared by Mr Hufer, it seems that you were exhibiting anger management issues while at school, which led him to become a supervisor for you when he was a teacher there. He was engaged in case management with you and set a pathway for you to find a vocation via the VCAL program. It appears that you encountered problems at school in terms of your behaviour, however, I have no doubt that your mental health declined after witnessing your father having a stroke in 2011. You are very close to your father and this was a most traumatic event for you. I also accept that your back injury and the problems you have encountered in relation to it, when you were twenty-two, have further exacerbated difficulties in your life.
62Ms Fleming assessed you as being at low to moderate risk of re-offending. As your counsel indicated, there are two areas which need intensive attention, namely your mental health and your drug use issues.
63In sentencing you, I factor in that you have excellent support from your family, especially your father, and also from Mr Hufer, who has gone from being a teacher and mentor in the classroom, to being a friend. As I have said, he wrote a most helpful letter to the Court, setting out the difficulties that you have encountered at school, and after that. He also spoke of a relationship which you had which ended in 2016, where both you and your ex-partner were consuming cannabis and methylamphetamine regularly. He observed that you spiralled quickly after the relationship ended, which led you to be without stable accommodation and without work as at 2018. This then led to more frequent and intense drug use at that time. You have been able to stay with Mr Hufer during various periods, however, as I previously said, you had to move out after he discovered you were taking drugs once more, after April 2021. I understand that you are now again living with him, but there have been some challenges along the way.
64In his letter, Mr Hufer spoke most eloquently of your intense guilt and shame, as well as your regret in relation to your offending, and the impact it has had on others, as well as the jeopardising of your future. He emphasised that you are not alone and that you would not be abandoned.
65In view of the offending before me, your limited criminal history, your mental health and drug issues, your support in the community, including the fact that you are now working as a landscaper and have stable accommodation, I assess your prospects of rehabilitation as good. I place less than moderate weight on specific deterrence and protection of the community, however, I must place strong weight on general deterrence in a bid to deter others from offending as you have.
66It was submitted by your counsel that a properly-structured Community Corrections Order was appropriate in your case, and the prosecution agreed.
67I adjourned this matter in order to have you assessed for an extensive report to be prepared, indicating to you that I required further evidence of your rehabilitation and the need for you to continue on the path that you had resolved to take since January this year.
68I have now received the report, which indicates you are suitable for a Community Corrections Order, and that you have apparently been clean of drugs, having been inspired to keep this going in order to be able to see your sister and her baby. You were assessed as being at moderate risk of re-offending by the assessor for the Community Corrections disposition.
69Mr Laidlaw, I will give you a chance to continue on the path of rehabilitation that you are now on, but make no mistake – if you breach the Community Corrections Order by further offending or breaching conditions of the order, I will have little hesitation in sentencing you to a period of imprisonment. Do you understand that?
70ACCUSED: Yes, Your Honour.
71HER HONOUR: All right. The other thing is, you can only go up from here, and you are already turning things around, and I want you to just keep going the way you are. All right. You haven't jeopardised your future to the extent where you can't do anything. You can actually make a go of things, but it’s up to you. Yes?
72ACCUSED: Yes. Thank you, Your Honour.
73HER HONOUR: You are convicted of the offence.
74I make the Disposal and Forfeiture Orders sought by the Crown and not opposed by you.
75I intend to place you on a Community Corrections Order, but I can only do this with your consent so please listen carefully to the order that I propose.
76The Community Corrections Order would run for a period of three years.
77The conditions of the Community Corrections Order would be as follows:
78Firstly, the mandatory terms that apply to all Community Correction Orders, which are:
79You must not commit another offence for which you could be imprisoned during the time that the order is in force;
80You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
81You must report to, and receive visits from, the Secretary to the DOJ (or his or her delegate);
82You must report to the Ringwood Community Corrections Centre before 4 pm within two clear working days of today.
83You must let a community corrections officer know within two clear working days of you changing your address or job;
84You must not leave Victoria without first obtaining permission to do so from the Secretary to the DOJ (or his/her delegate).
85You must obey all lawful instructions from and directions of the Secretary to the DOJ (or his/her delegate).
86The conditions that apply in addition to the mandatory terms listed are:
Community Work
87You must perform 150 hours of unpaid community work within 3 years.
88Up to 100 hours of this condition may be satisfied by the successful completion of the equivalent period of time of all or any of the treatment and rehabilitation conditions of this order.
Supervision
89You must be under the supervision of a Community Corrections Officer for a period of 3 years.
Treatment and Rehabilitation
90You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
91You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.
Programs re Offending
92Also, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
Monitoring
93And you are to attend this Court from time to time to be monitored by me. Your first appointment will be on Thursday 27 October at 9.30am. Ahead of each monitoring appointment I will have Community Corrections provide a report as to how you are going on the order. You are not to be represented at these appointments with me, as they are an opportunity for me to have a chat with you, a pretty casual chat - - -
94ACCUSED: Yes.
95HER HONOUR: - - - about your progress, and Community Corrections may also attend.
96Now, having heard what I proposed under this Community Corrections Order, do you consent to the terms and conditions of the order?
97ACCUSED: Yes, Your Honour.
98HER HONOUR: I should tell you that, down the track, if there is anything that arises warranting this, you are able to apply to the Court for variation of the order.
99ACCUSED: Thank you.
100HER HONOUR: I should tell you that if you do not comply with all of the requirements of this Community Corrections Order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment. As I have said, I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
101Do you understand this?
102ACCUSED: Yes, Your Honour.
103HER HONOUR: Do you still consent to the order?
104ACCUSED: Yes, Your Honour.
105HER HONOUR: All right. Thank you. Therefore, in relation to the charge, you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out.
106I will ask your counsel to help you with the signing of the order that I have just announced.
107ACCUSED: Yes.
108HER HONOUR: If not for your plea of guilty, I would have sentenced you to a period of imprisonment of three years, with a non-parole period of two years. All right. So just stay there for a moment and I will get your barrister to help you with the signing of that, unless there’s anything that needs to be correct in the meantime.
109ACCUSED: Yes.
110HER HONOUR: No? All right. I have signed those orders. Mr Laidlaw, just small steps at a time.
111ACCUSED: Yes.
112HER HONOUR: Take your time. Reach out when you need to.
113ACCUSED: Yes.
114HER HONOUR: Don’t put your head in the sand. Okay.
115ACCUSED: Yes, Your Honour.
116HER HONOUR: And we will have a chat on 27 October.
117ACCUSED: Okay. Thank you.
118HER HONOUR: All right.
119ACCUSED: Thank you so much.
120HER HONOUR: Thank you. We will adjourn.
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