Director of Public Prosecutions v Lang
[2019] VCC 979
•28 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-00993
Indictment No. H12309557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN LANG |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2019 | |
DATE OF SENTENCE: | 28 June 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Lang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 979 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery (one charge) – theft (two charges) – driving a motor vehicle during a period of disqualification (two charges) – pleas of guilty
Legislation Cited: Crimes Act 1958, s75A, s74; Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: Convicted and sentenced to a total effective sentence of four years and one month’s imprisonment, with a non-parole period of two years and six months. Section 6AAA declaration: Six years’ imprisonment, with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Stougiannos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M. Casey | Michael J Gleeson & Associates |
HIS HONOUR:
1 On Wednesday, 26 June 2019, you came before me for plea. You were arraigned and pleaded guilty to one charge of armed robbery (Charge 1) and two charges of theft (Charges 2 and 3). In addition, you pleaded guilty to two related summary offences, being two charges of driving a motor vehicle during a period of disqualification (Charges 2 and 6).
2 The maximum penalty for armed robbery is 25 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment, while the maximum penalty for driving whilst disqualified is two years’ imprisonment or 240 penalty units.
3 Tendered as Exhibit “A” and read aloud in Court was the Summary of Prosecution Opening for plea.
4 On Tuesday, 4 July 2017, your victim, a backpacker tourist from Germany, was standing near the northbound lane of the Hume Highway near its intersection with Barry Road at Upfield. Your victim was holding a cardboard sign that read “Sydney” and was attempting to obtain a lift. You pulled up in a car and told him to jump in, as you could take him 'halfway'. Your victim put his backpack in the boot of your car and then sat in the front passenger seat beside you. You drove north along the Hume Highway. You told your victim that your name was John. After about half an hour, you asked if you could use the victim’s phone to call your half-sister, Chelsea. Your victim lent you his phone and you pulled over to the side of the road some five kilometres south of the Wallan BP station to make the call. Your call was not answered. You became angry. You took a screwdriver from the driver’s side door, pointed it at the eye of the victim and demanded that the victim get out of the car. (See depositions p.15, Line 23) The victim feared for his safety and put his hands up and got out of the car. He begged you to give him his belongings and initially, you said that he could get his backpack out of the boot, however, you drove off before the victim had an opportunity to do so, stealing the victim’s mobile phone and backpack and its contents (Charge 1, armed robbery and related summary offence, Charge 2, drive whilst disqualified).
5 Your victim had the presence of mind to take note of your registration number, 1DX 9MR as you drove off. Your victim eventually flagged down a passing car and told its occupants of his predicament. The occupants of the car let him call the police and they drove to the Wallan BP station where your victim was met by the police.
6 Police enquiries into the registration number, IDX 9MR, established that one registration plate had been stolen from a vehicle at a Reservoir address between 28 June and 4 July 2017.
7 Police enquiries with Vodafone revealed records of your use of the stolen phone. Further, on 17 July 2017, the victim attended the Surfer’s Paradise police station and identified you from a photo board.
8 On Thursday 27 July 2017, police executed a warrant at your address in Broadmeadows. You were not at home, however, on execution of the warrant, police located registration plates bearing the number 1IJ 7AL and paperwork and mail in the name of Tyron Burke. Police established that sometime between 9.30 pm on Monday 10 July 2017 and 6.30 am on Tuesday 11 July 2017, that a white Mitsubishi Triton utility with registration 1IJ 7AL belonging to Tyron Burke was stolen from outside No.21 Cormac Street, Preston. At about 6.50 pm on Tuesday 11 July 2017, you drove the stolen Mitsubishi Triton utility into a Caltex service station in Plenty Road, Kingsbury. You put $30 worth of petrol into the utility and drove off without paying (Charges 2 and 3, together with the related summary offence, Charge 6, driving whilst disqualified).
9 On 10 August 2017, you were interviewed under caution by police. You largely provided 'no comment' answers or remained silent in respect to questions asked of you. You were bailed to appear at the Melbourne Magistrates’ Court on 17 August 2017.
10 You failed to appear at a committal case conference on 2 November 2017 and were subsequently arrested and remanded in custody on 9 February 2018. A contested committal was conducted on 9 May 2018, where the victim was cross-examined.
11
On 28 May 2018, you were sentenced to 12 months’ imprisonment, with a
non-parole period of six months. One hundred and nine days was declared as pre-sentence detention in respect to the offences that were all committed subsequent to the instant offences. As you were awaiting trial on this matter, you were not granted parole and served the entire 12 month sentence imposed by the Magistrates’ Court at Broadmeadows. As a consequence, there were 138 days by way of pre-sentence detention to be declared, as at the date of your plea.
12
You admitted an extensive prior criminal history, that showed that between
22 June 2011 and 6 December 2016, you accumulated 109 convictions arising out of eight appearances before various Magistrates’ Courts. Your prior offending includes driving, prison, bail, weapons, dishonesty, and drug offences. In particular, you have seven prior convictions for driving whilst your authorisation to drive a motor vehicle was suspended. Further, the basis for the sentence imposed on you on 28 May 2018, was 27 dishonesty and driving offences.
13 Tendered as Exhibit “B” on the plea was the Victim Impact Statement of your victim. The statement came into existence some five weeks after your offending and it is plain, at that time, your victim was adversely affected by your conduct and markedly so. Apart from the obvious psychological sequelae of your conduct towards him, he lost all of his possessions, some of which had great sentimental value to him and were irreplaceable. The issue of the effect of your conduct upon your victim was raised during the course of his cross-examination at committal on 9 May 2018. At that stage, your victim was still adversely affected by your conduct. At p.9, Line 18 of the transcript of the depositions, the victim swore:
'Even now, like the last couple of days when I saw this um, this court date coming, my – certainly more about what happened again and going over and over and that was painful.'
14 It is plain that the effect of your conduct on your victim has diminished over time, however, the fact that he had to be cross-examined at committal caused him to re-live that experience.
15 Tendered as Exhibit 2 on the plea was a psychological report, dated 11 June 2019, prepared by David Ball, forensic psychologist. You reported to Mr Ball that you are one of four siblings, with two brothers and a sister. You also have step-brothers and sisters. You described your upbringing as dysfunctional and characterised by domestic violence and substance abuse. Your parents separated when you were aged about eight years or so and thereafter, your mother re-partnered on several occasions. You told Mr Ball that your mother’s partners were abusive to her and one of them introduced you to drugs when you were aged 16. Some of your mother’s partners were physically abusive to you.
16 You attended school to Year 9 level, but throughout your education, you were assisted by an aide and you were often bullied by other children because of your dull intellect. You are functionally illiterate and innumerate. You informed Mr Ball that you have had three significant relationships. You have two children, currently aged nine and five years, from your second partner. You also informed Mr Ball that you considered yourself to be single and unattached.
17
By the time of your mid to late-teens, you were an habitual user of cannabis and since your late-teens, have abused methylamphetamine, typically using
1.7 grams daily.
18
Mr Ball described you as 'a socially detached individual with crushingly low
self-esteem'. Mr Ball diagnosed you as having an Antisocial Personality Disorder and a Severe Stimulant Use Disorder.
19 It is to be noted that your counsel, Ms Casey, did not rely upon any of the principles of Verdins[1] in respect to you.
[1]R v Verdins & Ors (2007) 16 VR 269
20 It must be noted that there are some limitations in respect to Mr Ball’s assessment of you, in that his conference with you was conducted via a 'box visit' and he was unable to conduct intelligence tests in respect of you, however, based on his observations of you, he assessed your IQ as falling within the 'mildly retarded range'. He recommended formal intelligence testing in respect to you.
21 Tendered as Exhibit 1 were the Outline of Submissions on Plea prepared by your counsel, together with a very helpful chronology. Your counsel’s ultimate submission was that, taking into account the 12 months’ sentence which you have undergone, together with the period to be taken into account by way of pre-sentence detention, a community corrections order directed at your rehabilitation, was the appropriate sentencing disposition in all the circumstances. This submission was based on a number of propositions:
(i) Your dysfunctional background;
(ii) The period of time that you have spent at RecoverOz in residential rehabilitation;
(iii) That after your period in residential rehabilitation and a period of probation in respect to custody of your children, you gained custody, obtained work as a concreter and had a house to live in and in the words of your counsel, had 'put your life on track';
(iv) You instructed your counsel that as a result of a false complaint made against you in respect to the use of firearms, the Department of Human Services intervened and removed your children from you. As a result of this, you resumed your abuse of methylamphetamine and your life spiralled out of control;
(v) That whilst in custody, you have been imprisoned at Ravenhall Correctional Centre, where you are a billet. Your job as a billet is a responsible one and that whilst classified as a prisoner under 'protection', you reside in an accommodation unit with other prisoners, where you manage your day-to-day living. I was informed that the unit is a self-contained unit, housing six prisoners, where you effectively cater for, cook and feed yourselves throughout the week;
(vi) Despite being a prisoner both on remand and undergoing sentence, which caused limitations to the courses that were available to you, you have undertaken courses aimed at reducing your risk of re-offending. (See Exhibit 3, which contains a reference from RecoverOz, dated 18 October 2016, various certificates of courses undertaken by you and a letter of apology to your victim, a letter to me, the sentencing judge, and a list of your goals for 2019, as well as a reference from the Correctional Manager of the Psychiatric Unit at Ravenhall where you are a billet);
(vii) That upon release, you will reside with your mother and her current partner, who live on a small farm in the Korumburra area, which will take you away from your former peer group and allow you to continue the process of rehabilitation; (See Exhibit 4 )
(viii) That you have been drug-free whilst in custody.
22
Ultimately, it was submitted that the 18 months or so that you have spent in prison, has caused you to reassess your life and that you have a desire to rehabilitate and to become a useful member of society now at the age of 27.
I must take this period spent in prison into account in the application of the principle of totality.
23 You are currently on a regime of 40 millilitres of methadone daily. It was put to me that this was prescribed to you for pain relief, as a result of an injury to your knee that you suffered as a youth playing football, for which you were treated, however, you re-injured your knee to the extent that it now requires a reconstruction. It was further put that you used methadone as a means to avoid the temptation of abusing illicit substances whilst in custody. Whilst the methadone is prescribed to you for a proper purpose, it is my assessment that you are using it, in part, as a crutch to avoid using illicit drugs and rely upon the opiate effect of methadone to maintain your equilibrium within the prison environment.
24 Your plea of guilty is a late one. You pleaded guilty to the current indictment on 20 February 2019, prior to your trial that was listed for 12 March 2019. You conducted a committal proceeding, where the victim of your offending was cross-examined. Your plea has utilitarian benefit and in support of a submission that you have always been remorseful for your offending, your counsel relied upon your answer to Question 68 in the record of interview, where you said, 'Just if I have hurt anyone or anything, like sorry'. To my mind, this submission is hollow.
25 You have a lengthy prior criminal history, as well as a number of subsequent convictions. Whilst it is true, you are making the best of your time in custody, your antecedents are such that I regard your prospects of rehabilitation as somewhere between bleak and guarded. Any prospect of your rehabilitation is dependent upon your being abstinent from all forms of drugs and it was put to me on your plea, that you propose to remain upon methadone upon your release from prison. To my mind, the prospects of you remaining drug-free into the future are very limited indeed.
26
The crime of armed robbery is a serious one. It is punishable by a period of
25 years’ imprisonment. You have two prior convictions for reckless conduct endangering serious injury arising out of your driving. You have seven prior convictions for driving whilst your licence was suspended and seven prior convictions for theft of a motor car. You are not to be punished for your prior offending, however, your prior offending and indeed subsequent offending, demonstrate that you need to be specifically deterred from committing crimes. Further, you are an appropriate vehicle for the application of the principle of general deterrence.
27 I regard your offending as serious examples of offending of its kind. Whilst the armed robbery was by no means the most serious example of a crime of that kind, you picked up your victim knowing him to be hitchhiking to Sydney. You threatened him with a screwdriver and stole all of his worldly possessions. In colloquial terms, it was simply a mean act and one consistent with your antecedents. You are an inveterate thief and have no regard for the road laws or the licensing provisions in respect of drivers of motor vehicles.
28 Will you please stand.
29 By these sentences, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to the protection of the community. I must look to your rehabilitation.
30 Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
31 On Charge 1, armed robbery, three years' imprisonment.
32 On Charge 2, theft of a motor vehicle, 12 months' imprisonment.
33 On Charge 3, theft of petrol, three months' imprisonment.
34 I order that six months of the sentence imposed on Charge 2 and on month of the sentence imposed on Charge 3, be served cumulatively upon each other and upon the sentence imposed on Charge 1.
35 This results in a total effective sentence on the indictment of three years and seven months' imprisonment.
36 In respect to each of the related summary offence, I sentence you to six months' imprisonment and I order that three months of each of those sentences be served cumulatively upon each other and on the sentence imposed upon the indictment.
37 This results in a total effective sentence of four years and one months' imprisonment and I fix a period of two years and six months' imprisonment as the period that you must serve before you will become eligible for parole.
38 I declare that you have spent 140 day by way of pre-sentence detention, not including today.
39
Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to six years' imprisonment, with a
non-parole period of four years' imprisonment.
40 I cancel all licences and permits held by you under the Road Safety Act 1986 and disqualify you from obtaining any such licence or permit for a period of two years.
41 Are there any other matters arising?
42 COUNSEL: No, Your Honour.
43 HIS HONOUR: Remove the prisoner.
44 Sine die.
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