Director of Public Prosecutions v Lawrence

[2017] VCC 1869

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR-16-02165

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE LAWRENCE

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Bairnsdale
DATE OF HEARING:	15 May 2017
DATE OF SENTENCE:	19 May 2017
CASE MAY BE CITED AS:	DPP v Lawrence
MEDIUM NEUTRAL CITATION:	[2017] VCC 1869

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCING
Catchwords:              Theft – blackmail- possess drug of dependence
Legislation Cited:     Crimes Act 1958; Sentencing Act 1991

Sentence:Ten months imprisonment combined with a Community Correction Order of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Solicitor for the Office of Public Prosecutions
For Accused Lawrence	Mr G. Casement	Daniel Taylor Lawyers

189

 

 

HIS HONOUR: 

1Dale Lawrence and Wayne Mitchell‑Beecham, you both pleaded guilty to one charge of blackmail. In addition, you, Mr Lawrence, have pleaded guilty to one charge of theft and you, Mr Mitchell‑Beecham, have pleaded guilty to one charge of possession of a drug of dependence.  The circumstances of your offending are as follows.

2On 26 August 2016, together you viewed photographs displayed on a Samsung Galaxy mobile phone.  The circumstances in which you came to be in possession of that phone were not disclosed at your plea hearing, however, it was later determined that the phone had been reported as missing.  You viewed photographs on that phone of what appeared to be military grade firearms and ammunition, together with some information linking those photographs with a particular shop here in Bairnsdale. You both came to the conclusion that those items were held illegally.  You decided to attend at the shop and demand $1,000 cash for the return of the phone, using the photographs of what you considered to be illegally possessed weapons and ammunition as leverage.

3That afternoon, you both entered the shop and enquired whether any person connected with the business had lost a mobile phone.  It seems no such report was made and you left.  That night you returned to the shop and produced the mobile phone to the owners of the business.  You showed them the photographs.  They recognised a man depicted in the photographs as the brother of one of the owners who was then not in the country.  You determined that the owners of the business were in possession of guns and you asked where they were.  You demanded money from them for the return of the phone and what you considered were incriminating photographs. You both left the shop. 

4Soon after closing time, you, Mr Mitchell‑Beecham, rang the shop from your mobile phone and demanded from one of the owners $1,000 for the return of the phone or else you would go to the police.  You demanded that the money be paid and told her that you were coming to the shop straight away.  The owner who received that call was understandably placed in some fear.  To stall you, she suggested that you return at 11am the next morning when she would have the money.

5The owners of the shop attended the Bairnsdale Police Station that night and reported the matter.  The next morning you were both arrested.

6Mr Lawrence, you made a record of interview with police in which you made admissions as to your conduct on the blackmail offending.  Mr Mitchell‑Beecham, you declined to be interviewed.

7This conduct constituted blackmail, the making of unwarranted demands with menace to the owners of the shop in breach of s.87 of the Crimes Act 1958. This offence carries a maximum penalty of 15 years' imprisonment.

8In addition, Mr Lawrence, on 15 August 2016, you entered the Liquorland store in Bairnsdale and removed a can of rum and cola from a fridge. You left the store. You made no attempt to pay for the can. Your actions were recorded on CC television. This conduct constituted theft contrary to s.74 of the Crimes Act 1958. The maximum penalty for such an offence is 10 years' imprisonment.

9Mr Mitchell‑Beecham, when police attended at your home in order to arrest you, they located in your bedroom a small quantity of cannabis in breach of s.73 of the Drugs, Poisons and Controlled Substances Act 1981.

10Pursuant to s.5 of the Sentencing Act 1991 the only purpose for which a court may impose sentences upon you are as follows:

·to punish an offender to an extent and in a manner which is just in all the circumstances; 

·to defer the offender or other persons from committing offences of the same or a similar character; 

·to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; 

·to manifest the denunciation by the court of the type of conduct in which you engaged;

·to protect the community from the offender; or

·a combination of two or more of those. 

11I have also had regard to s.5(2) of the Act which requires me to have regard to the maximum penalties, which I have already described; current sentencing practices; the nature and gravity of the offence; the offender's culpability and the degree of responsibility for the offence; the impact of the offence on any victim of it; the offender's previous character; and the presence of any other aggravating or mitigating factors concerning the offence.

Background

12Mr Lawrence, you are aged 46.  You were 45 at the time of the offending.  You are an Aboriginal man.  Your counsel informed me that you have had a very difficult upbringing.  From the age of eight you were sexually abused by a family member.  Your family life appears to have been grossly dysfunctional and chaotic.  Your parents were rarely together.  You lived with various family members for different periods of time.  You were often taken in by family friends.  Your mother and other adults in your life were heavy drinkers of alcohol.  Your family appears to have been impoverished.  You were removed to institutional care when you were aged 12.  Education was difficult for you and you only continued your schooling until Year 8.

13Since that time, regular work has been difficult for you to find.  You have a long‑standing battle with addiction to drugs and alcohol. 

14You have fathered seven children in all, two with your first partner, who are now adults.  You have been with your current partner since about 2000 and with her you have had five children ranging in age from nine to 15.  She also has four children from a previous relationship.

Prior Convictions

15You have prior convictions for possessing a controlled weapon, possessing a firearm in April 2016, handling and receiving stolen goods, two convictions for theft, intentionally damaging property, burglary, theft from a shop ‑ it might be three convictions involving theft, cultivating cannabis ‑ in fact, I think there's four or five convictions for theft, together with a number of driving offences, including driving whilst disqualified and unlicensed driving. These go back to about 2008.

16Most of your prior convictions appear to be related directly or indirectly to your drug and alcohol issues.  Neither of these constitute an excuse for criminal behaviour.

Mitigation

17Your counsel submitted, and I accept, that there are a number of factors which go in mitigation of your sentence. 

18Following your arrest, you were cooperative with police, you agreed to make a record of interview and you adopted a candid approach with them.  You admitted your conduct in relation to the blackmail although you didn't admit your conduct in relation to the theft of the can from Liquorland.  Your counsel submitted that you were intoxicated at the time, which might at least explain your lack of memory of it.

19You have, since your remand in custody, completed a number of courses, which is commendable.

20I am in possession of a report from David Ball, Forensic Psychologist and Clinical Neuropsychotherapist dated 24 January 2017.  In his report he assessed you as being a relatively low functioning man with some impairment to your capacity to exercise good judgment.  He considered that you suffered from a severe stimulant opiate and cannabis use disorder which was in early remission albeit in the context of the prison environment in which you find yourself.  He also thought that you suffered from a persistent depressive disorder with anxious distress.  He considered that this related mainly to your grossly dysfunctional and chaotic upbringing and childhood sexual abuse.

21He considered that whilst on remand you had vigorously applied yourself to your rehabilitation and he considered that you had access to and would benefit from private psychological services and drug and alcohol relapse prevention treatment.  He noted that you had received compensation from the Crimes Compensation Tribunal in relation to your earlier sexual abuse and that these services could be provided to you at no cost pursuant to that award.  Notwithstanding, it does not appear that you had obtained such services at any time before your arrest but you should note that it appears, at least in Mr Ball's opinion, that you can get appropriate counselling and treatment at no cost and you should think seriously about that.

22Mr Ball found no evidence of any frank mental illness.

23The fact that your partner and young children would have had to fend for themselves if you were incarcerated again, would be likely to make the experience of further imprisonment more burdensome upon you than would otherwise be the case.

24Your counsel advised me that you had already received a referral to a Dr Konsella at Gippsland Lakes Community Health.  There is no suggestion or evidence that you had previously followed up that referral or had made any definite plans to do so in the future. One hopes you will.

25Your counsel submitted that your offending was unsophisticated and amateurish.  It was bound to fail and, indeed, was spectacularly unsuccessful.  It turned out that the owner of the firearms was permitted at law to possess them and had not committed any offence at all.

26Your counsel submitted that the blackmail offence was towards the bottom end of the scale in terms of seriousness.  Whilst I agree that the money demanded was relatively small, the victims of the demand were what I would describe as "soft targets", persons who are likely to be terrified as a result of the threat made by both of you. Certainly your conduct is nothing at all to be proud of.

27Your counsel submitted that you had shown remorse for your offending and that you had worked steadfastly towards your own rehabilitation whilst on remand.  He submitted that your prospects for rehabilitation were "sound".  I am not sure I would put it as high as that on the information before me, but you have some prospects for rehabilitation. Time will tell.

28I am in possession of a report from Corrections Victoria dated 16 May 2017 in which the author states that you have been assessed as suitable for a community correction order.  I note that in the report the author states as follows, "It's with reservation that Mr Lawrence be found suitable given that he has two outstanding community correction order contraventions in the Magistrates' Court".  The author of the report was of the opinion that you had a high risk of re-offending. That is an opinion that you might want to think long and hard about.

29Notwithstanding your counsel's persuasive submissions, I have grave doubts as to your prospects of rehabilitation.  Nevertheless, I have come to the conclusion that in all the circumstances you ought to be extended a further opportunity to demonstrate that you are or could be rehabilitated so as to perform a meaningful role in your family and community life.  There appears to be no doubt that your supportive partner and your young children would benefit from you being part of their home life.

30In all the circumstances I have determined to sentence you in relation to the offences of blackmail and theft on an aggregate basis to a term of imprisonment of ten months to be followed by a community correction order of two years duration with a number of conditions attached to it. I would not make such a community correction order unless you consent to it. 

31Before I ask you whether you consent to such an order I should tell you what the conditions will be.

32There are a number of mandatory conditions set out in s.45 of the Sentencing Act 1991. They are applicable to every community correction order.

·Firstly, that you must not commit during the course of the two year term of the order any offence in or outside of Victoria punishable by imprisonment. 

·Secondly, that you must comply with any obligation or requirements prescribed by the regulations. 

·Thirdly, that you must report to and receive visits from the Secretary of the Department of Justice or his or her nominee during the period of the order. 

·Fourthly, that you must report to the Community Correction Centre at 108‑110 McLeod Street, Bairnsdale within with two clear working days after this order comes into force.  Now, that makes it Wednesday at 4 pm.  You must, before Wednesday at 4 pm, report to Community Corrections at McLeod Street in Bairnsdale.  Today is Friday, you have got all of Monday ‑ well, you have got this afternoon, you have got all of Monday, you have got all of Tuesday and you have got until 4 pm on Wednesday.

MR TAYLOR:  Your Honour, we're just having a debate.  Sorry to interrupt.

HIS HONOUR:  Yes.

MR TAYLOR:  Debate at the Bar table.  Your Honour, it seems clear that your intention is time served, is that ‑ ‑ ‑

33HIS HONOUR:  Apologies.  I am misleading you, Mr Lawrence, just be seated.  The community corrections order will commence upon your release from prison, which I will come to in a moment.  All right, you can seated, please.  Just sit down for a moment.

34So from the date of your release you have two clear working days, don't count the weekends, you have two clear working days to report to Community Corrections in Bairnsdale.

35Fifthly, you must notify the Secretary of any change of address or employment within two clear working days after that change.  If you move home, you get a new job or you change jobs or you lose your job you must report that within two clear working days.

36Sixthly, you must not leave Victoria except with the permission of the Secretary of the Department of Justice ‑ read for that Corrections Victoria.

37Finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

38In addition to that, I intend to impose the following conditions.

·Firstly, that you perform 100 hours of unpaid community work during the period of the community correction order, that is at the two year period of that order, two years following the release from prison.

·Secondly, that you submit to any assessment or treatment, including testing, for drug abuse or dependency.

·Thirdly, that you submit to any assessment and treatment including testing for alcohol abuse or dependency.

·Fourthly, that you attend for programs that address factors relating to your offending behaviour.

·Fifthly, that you can supervised, monitored and managed as directed by the Secretary to the Department of Justice or his or her nominee.

39I need to know whether you consent to such a community correction order because if you don't, I can't make that order.  Would you like an opportunity to speak with your legal representative for a moment?  Yes.  I should perhaps tell you, Mr Taylor, that of course in relation to that ten month term there has been a number of days served in pre‑sentence detention.

40MR TAYLOR:  Yes.

41HIS HONOUR:  Now, I was told the other day it was 261 days, it will be a little more than that, I think.

42MR TAYLOR:  264, Your Honour.

43HIS HONOUR:  264.  Well, you can advise your client you factor that into it too.

44MR TAYLOR:  Yes, Your Honour, he consents to the order.

45HIS HONOUR:  Thank you.  I declare that you have already served 264 days in pre‑sentence detention, not including this day, and I direct that such period be recorded as part of the sentence of imprisonment that I have imposed as already served.

46Now, on my calculations, and don't hold me to this, but I make it something like 8.7 months of the ten months you have already served.  It seems to me you have got ‑ ‑ ‑

47MR O'DOHERTY:  A month and a half.

48HIS HONOUR:  A month and a half or a bit less still to go.  On your release from prison the community correction order will commence.

49Pursuant to s.6AAA of the Sentencing Act of 1991, I declare that had you not pleaded guilty to these offences I would have sentenced you to an aggregate term of imprisonment of 12 months.

50Mr Mitchell‑Beecham ‑ ‑ ‑

MS ROLF:  Your Honour, just with respect to ‑ ‑ ‑

HIS HONOUR:  Ms Rolf.

MS ROLF:  But they're submissions, I do reserve the right to make further submissions if Your Honour has not to this point been persuaded in respect of my ultimate submission with respect to sentence.

HIS HONOUR:  I am persuaded to this extent that there will be a similar term of imprisonment and a similar community correction order if your client consents to such community correction order.  If he doesn't, and you might tell me that promptly ‑ ‑ ‑

MS ROLF:  When Your Honour raises ‑ ‑ ‑

HIS HONOUR:  ‑ ‑ ‑ save a lot of trouble.

MS ROLF:  ‑ ‑ ‑ "similar", similar to that which has been imposed.

HIS HONOUR:  The pre‑sentence detention is slightly different.

MS ROLF:  Yes.

HIS HONOUR:  Because your client has been out on bail.

MS ROLF:  In those circumstances, Your Honour, I do seek to make further submissions.  Your Honour raised in respect to Mr Lawrence whether there was anything new in terms of what's occurred following the plea on Monday.

HIS HONOUR:  Yes.

MS ROLF:  I raised on Monday Mr Mitchell‑Beecham's instructions with respect to the conciliation conference that was listed the following day in respect of his children and there was at that point an application in respect of a Custody to the Secretary order which he is resisting with his partner.  What he's instructed me in relation to that is that the Department are open to there being a reunification plan in respect of the youngest child and that is something that he wishes very much to apply himself to.

HIS HONOUR:  You're going to have to start this again.  There's been a conciliation process of some kind.

MS ROLF:  I raised on Monday, Your Honour ‑ ‑ ‑

HIS HONOUR:  Yes.

MS ROLF:  ‑ ‑ ‑ that the following day there was to be a conciliation conference in respect of proceedings in relation to the children.

HIS HONOUR:  Yes.

MS ROLF:  There was an application for a Custody to the Secretary order in respect of the children being considered.  I've sought instructions this morning in respect to what came of that.  My instructions, and I haven't been able to confirm them, is that there is a prospect of the Department supporting a reunification plan with respect to the youngest child, who is ten months.  I'm instructed that the proceedings are listed for ‑ ‑ ‑

HIS HONOUR:  Just a minute.  The prospect of the Department approving.

MS ROLF:  Supporting.

HIS HONOUR:  Supporting a reunification plan, yes.

MS ROLF:  With respect to the youngest child, who is ten months and is currently in the care of the maternal grandmother, as I've previously canvassed.

HIS HONOUR:  Yes.

MS ROLF:  He instructs me that the proceedings are next listed for mention in six weeks' time and that he will be supervised by the Department in that period.

HIS HONOUR:  He will be?  In what way? 

MS ROLF:  He instructs me that ‑ I don't have detailed instructions as to what ‑ ‑ ‑

HIS HONOUR:  This is the Department of Human Services, is it? 

MS ROLF:  Yes, Your Honour.  That part of that would be the provision of random urine screens.  I don't have instructions beyond that about what else he will be required to do.  He's also informed me of a further appointment with a drug and alcohol counsellor associated with Latrobe Community Health, that is scheduled for ‑ ‑ ‑

HIS HONOUR:  Sorry, a further appointment with whom? 

MS ROLF:  With the counsellor to whom he was referred scheduled for this Tuesday.

HIS HONOUR:  Yes.

MS ROLF:  They're the further instructions that I've received this morning.  It is my strong submission, Your Honour, in respect of Mr Mitchell‑Beecham that the time served to date is sufficient to satisfy the considerations of general deterrence, punishment, denunciation and protection of the community.  With respect to specific deterrence, in my submission, the fact that Mr Mitchell‑Beecham has not been detected by the police in any way since he was released on bail serves to indicate that specific deterrence has been satisfied.  I raised ‑ ‑ ‑

HIS HONOUR:  Well, you've made those submissions on the earlier occasion.

MS ROLF:  Yes.

HIS HONOUR:  I've got to say, Ms Rolf, I'm more than a little disappointed that additional submissions in relation to reunification plans and the involvement of the Department of Human Services, which apparently would have been clear as at last Tuesday, are left until the middle of my sentence presentation of reasons.  You had an opportunity to make further submissions before I commenced if there was fresh and relevant material to put to me and I am more than a little disappointed that that wasn't done before I started.

MS ROLF:  Yes, Your Honour.

HIS HONOUR:  It seems to me you are asking for a big favour.  What I will do ‑ firstly, I don't agree at the present time that the time currently served is sufficient and I intended to make an order not dissimilar to that made in relation to Mr Lawrence.  What I will do, on the basis of what you have belatedly told me is I will defer this matter, the sentencing of Mr Mitchell‑Beecham, for a period of approximately six months and I want all details of his testing, screening, et cetera, put before me on that date and, can I say this, if there's to be any further submissions made, they will be made in writing before the date in question.

MS ROLF:  That's understood, Your Honour.

HIS HONOUR:  Right?  Now, just give me the calendar again Mr Cochrane. 

Yes, I will defer your sentencing until Thursday 9 November 2017 at the County Court in Melbourne at 9.30 am and I will direct if there is to be any further submissions made on your behalf in relation to your sentence they be made in writing prior to 4 pm on Wednesday 8 November.

MS ROLF:  If Your Honour pleases.

HIS HONOUR:  Further, I want to make this clear, Ms Rolf, if there's to be submissions based on the attitude of the Department of Human Services or any of its officers, then I would expect a report from the Department, not just second‑hand information from the Bar table, understand? 

MS ROLF:  Yes, Your Honour.

MR O'DOHERTY:  Your Honour, might I ask that if there's to be any further material provided by the Department it be provided to the Office of Public Prosecutions by Thursday 19 October.

HIS HONOUR:  Well, the only issue I see with that, Mr O'Doherty, is that by 9 November it might be out of date or ‑ ‑ ‑

MR O'DOHERTY:  All right.  Well, let's ‑ ‑ ‑

HIS HONOUR:  ‑ ‑ ‑ there might be developments in that, that's a period of some weeks.

MR O'DOHERTY:  All right, well, make it the Thursday the week before, 2 November.

HIS HONOUR:  All right.  In fact, what I'll do, Ms Rolf, is I will say that any further submissions and any materials available from the Department of Human Services be filed with the court and made available to the Director of Public Prosecutions by 4 pm on 2 November 2017.  But the matter is otherwise listed for sentence on Thursday 9 November 2017 at 9.30 am.

MS ROLF:  As Your Honour pleases.

HIS HONOUR:  I will extend Mr Mitchell‑Beecham's bail until that time and date only the same terms and conditions.

MR O'DOHERTY:  Your Honour, there were two orders that we sought.

HIS HONOUR:  Yes, now ancillary matters.

MR O'DOHERTY:  Yes.  Forensic sample order in the case of Mr Lawrence and a disposal order in the case of the other accused.

HIS HONOUR:  We will just stand the matter down for a short time whilst we dig out the s.464ZF order.  Just bear with me for a moment.  The forfeiture order applies equally in both matters.  Is there any issue about the forfeiture of the Samsung Galaxy mobile phone in question?  MS ROLF:  No issue, Your Honour.

HIS HONOUR:  Thank you.  I will make the forfeiture order and ‑ well, is there any reason why I shouldn't make the disposal order at this time, Ms Rolf, in relation to the cannabis found at your client's home? 

MS ROLF:  No, Your Honour, there's no opposition to that.

Mr Lawrence, you will have to sign a document in relation to the community correction order which I will have handed to Mr Taylor and he can discuss that with you.  In the meantime I will just stand the matter down for a moment.  I seem to have misplaced the sample order, it's in my chambers out the back.  I won't be long.

(Short adjournment.)

51HIS HONOUR: Yes, in relation to you, Mr Lawrence, I will make an order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping in your mouth in accordance with subdivision 30A of part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.

52What it means is effectively that the police will have a record of your DNA for any possible future use.  Hopefully it will be no further use at all.

Is that order by consent, Mr Taylor, or not? 

MR TAYLOR:  Yes, Your Honour.

53HIS HONOUR:  Yes.  I make that order.  I am required to say I have to make that order having regard to the seriousness of the circumstances of the offending and also by reason it's by consent.  Notwithstanding your consent to the taking of a sample, I should tell you that if in the end you don't consent to the taking of a sample police may take a blood sample from you and may use reasonable force to enable a blood sample to be taken but I have got to tell you that too.

Mr O'Doherty, the actual order that you ‑ I understand, believe you gave me earlier in the circuit regarding Mr Lawrence and Mr Mitchell‑Beecham is unfindable in my chambers.

MR O'DOHERTY:  All right, we will produce a new one.

HIS HONOUR:  I'm not sure, but if you could produce another one.

MR O'DOHERTY:  We will.

HIS HONOUR:  I will sign that ‑ ‑ ‑

MR O'DOHERTY:  Thank you.

HIS HONOUR:  ‑ ‑ ‑ at that stage.

MR O'DOHERTY:  Yes, Your Honour.

HIS HONOUR:  Thank you.

Mr Taylor, the community correction order, perhaps you could just show that to Mr Taylor, he may wish to discuss that with Mr Lawrence.  It needs to be signed by Mr Lawrence.

HIS HONOUR:  Been signed?  Thank you.  I think that is all on the plate, isn't it?  Anything else that counsel wish me to attend to? 

COUNSEL:  No, Your Honour.

HIS HONOUR:  Thank you.   Would I be right in think, Mr O'Doherty, that that concludes our list for this sitting? 

MR O'DOHERTY:  Yes, Your Honour, that's the last matter in the circuit list, Your Honour.

HIS HONOUR:  Thank you.  Thank you for your assistance and counsel, in fact other counsel who have come and gone during the course of the circuit have been of great assistance to me and I am most grateful. 

On that note Mr Lawrence can be taken away, thank you.  And I have extended Mr Mitchell‑Beecham's bail. 

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