Director of Public Prosecutions v Lawson
[2013] VCC 1351
•25 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00536
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC LAWSON |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 September 2013 | |
CASE MAY BE CITED AS: | DPP v Lawson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1351 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HIS HONOUR:
1
Eric Mark Lawson, you have pleaded guilty to four charges of armed robbery, one charge of theft, one charge of burglary and two charges of reckless conduct endangering a person. Those crimes carry maximum penalties of
25 years, ten years, ten years and five years respectively.
2 You pleaded guilty to a settled presentment and I regard that as having been an early reasonable time. There were originally, obviously, more charges.
3 You are 29 years of age.
4 I accept that you have displayed appropriate remorse and you must, of course, get the utilitarian benefit of that plea of guilty of, one, the time and cost involved and, two, the saving of the victims from the trauma of having to be involved in a trial.
5 In your particular situation before I go into the circumstances of the actual offending, I think it is important to outline the tragic background that leads up to all this.
6 You do have a significant number of prior convictions, to say the least, and you have been incarcerated on prior occasions. Indeed it could be said that you very close to if not already institutionalised.
7 Your history was that you were taken into care in New South Wales when you were about ten. You are from the Mildura region, and we talked about that in the Koori Court. You were then in juvenile justice in Melbourne and you were in Baltara at the age of 11.
8 Ms Stewart, who is the Koori Court manager in Melbourne, has known you since you were a little boy and she participated in the conversations that took place in the Koori Court and said that she remembered you as always being there on your birthdays and those sorts of things. It is clear that to you Baltara became your family.
9 From Baltara you graduated to youth training centres, as they were then called, in Torana. You were transferred to adult prison when you were 17. You have had experience of violence when you were younger and, as a boy, you were not afraid to employ what you would have perceived as defence of yourself.
10 Between 2004 and 2005 you spent something just over a year not in prison. You described that to your counsel as the happiest year of your life.
11 In 2007, already being in custody, you were sentenced to be imprisoned for a period of six years and one month with a minimum term of 40 months. You were paroled in August of 2010. You lasted a month.
12 You went back to Mildura and lapsed into use of drugs again. You explained, during Koori Court, that when you got back there, everyone had moved on and you were still in the same position. In that situation you became depressed and commenced using again.
13 You were reclaimed by the parole board and paroled again in August of 2011.
14 By September of 2011 there was already a warrant out for a breach of parole. You had gone back to Mildura and had again, in those circumstances, lapsed into the use of ice. By November you were living in a car and using drugs heavily.
15 This offending took place in early November. You were arrested for this and reclaimed by the parole board. On my calculation you have now done 682 days of reclaimed parole and still have two or three months unreclaimed parole to serve. None of that can be declared as pre‑sentence detention in the sentence that I am obliged to pass upon you but it figures very large so far as totality is concerned.
16 As Ms Walker pointed out on your behalf, since 2005, you are only 29 years of age, and you have had a grand total of three and a half months of freedom.
17 There is going to be another significant period of time before your freedom is gained. In other words, your entire adult life has been spent in gaol. The bulk of your teenage years was spent in Youth Justice and a very significant portion of your childhood was spent in care.
18 It was in those circumstances of using ice heavily with the emotionally impoverished background of this offending occurred and it should be seen in that light. It remains, however, no matter how you go about it, very serious offending. There was a co‑accused, Jesse Kelly, who is yet to be dealt with and who plays no part in this process.
19 I will describe these crimes in brief because it will take too long otherwise.
20 On 4 November 2011 you and your co‑accused entered a book shop in Queens Parade in Clifton Hill. You had a knife. There were two female victims in the shop. You brandished the knife at them demanding cash saying, "Give us the money, bitches". They handed over $660 from the till. They were then threatened to hand over their mobile phones and you told them that you would stab them if they did not. You then left the store with the property and was seen getting into a vehicle. That is Charge 1, armed robbery.
21 Charge 2 of armed robbery and associated theft of a motor vehicle were that two days later, in the early morning, you drove to a cafe in Brunswick in a stolen vehicle. You parked outside the cafe and entered through the front door. You approached the female victim and asked for change for a pay phone. When she opened the register you pulled out a large kitchen knife, about 30 centimetres long, and lunged at her with it, cutting her finger. You then stole $200 from the till and fled in the car. In all these, Kelly is with you. I am not going to go into that.
22 The registration number was noted. Ms Stein received a laceration to her hand and required medical treatment though you are not charged with assault.
23 Charge 4 is one of burglary.
24 On 11 November, between 2.30 pm and 3 pm, you have both attended the Instore clothing store located in Acland Street, St Kilda. There were again female store attendants present. They were distracted and Kelly went to a rear staff office and found a handbag and took a purse and mobile phone from it. Various items were stolen and the two of you left. That gives rise to burglary.
25 Charge 5 of armed robbery.
26 Again in the early hours of the morning, I suspect because you had been up all night because of amphetamine use, you became involved in a foot pursuit in Campbellfield and were chased by police.
27 A bystander tried to stop you but saw you were carrying a knife. Whether that was a knife or screwdriver is another matter. You ran into Plenty River Plumbing in Campbellfield and locked the door behind you. You approached the 64‑year‑old manager screaming, "Hand over your keys or I'll stab you. I'll stab you". He pointed to the keys and you took the keys to his station wagon. That is, as I said, Charge 5, armed robbery.
28 You then got in the car and started it. Police arrived and called to you to stop. You accelerated and drove the car directly at the police. One of the police managed to get out of the way but you continued towards the other police officer who had to put his hands on the bonnet to get out of the way. You continued to drive along Lara Way and left the area. That is reckless conduct.
29 To his credit, the policeman has informed the prosecutor to tell me that he suffered no injury.
30 Charge 7 of armed robbery. Again in the early hours of the morning, about 8.55 am, you went into the Hard Yakka store in Mahoneys Road, Thomastown. A number of staff members were present together with a female customer. She went to the counter to purchase some items. When she got there, you approached her, grabbed her mobile phone from the counter. She endeavoured to get it back off you and a struggle for it ensued. You held a screwdriver over your head and said, "No, I'm serious". In fear she let you take her phone and her purse, which was sitting on the counter, asking for you to just take the money and nothing else. You demanded her car keys and she nodded and gave them to you.
31 You then turned to a shop attendant, named Lisa Bradbury, who was standing nearby. You grabbed her around the body and placed the screwdriver at her neck. You forcibly directed her to the till saying, "I want it all". She gave you all the available cash, about $420, and placed it in a bag. An EFTPOS machine apparently then started making a noise which surprised you, or whatever, and you left in Madison's vehicle.
32 On 15 November at around about 9 am, you were seen by police in Reservoir. A pursuit commenced. Your vehicle became stationary and in any event you attempted to ram, in summary before me, a police vehicle that was narrowly missed. You then drove through a front fence of a house and crashed the car. The police then tried to arrest you but you took off.
33 They lost sight of you, called a police dog and you were eventually found.
34 You were deemed unfit for interview, after being examined by a forensic medical officer, due to intoxication and, I am told from the Bar table, a dog bite.
35 In any event, you went into custody and you have been there ever since.
36 The offending can only be regarded as very serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment. There is also the circumstance here where community protection must loom large in a sentence that is imposed.
37 You participated in the Koori Court and you sat there and, in my view, openly and frankly discussed your offending with the elders. You told them, and I am, as you understand, experienced in listening to elders and their views on things, that you have made the determination, over this period of time in gaol, to turn your life around. You have a partner who is standing by you with whom you have contact by telephone every day. Talking to your daughter, you have realised that it has reached the time in your life when you just have to be there for your children.
38 You have indicated that up until this particular sentence, you had really not cared much about anything and had never really put any thought into where you were headed. You do not have the desire to be an old man in gaol and you know very well that as a black fella, if you continue drug use and the like in the way that you have in a free situation, you will not make 50. All those factors have influenced you and I accept that you expressed to the elders and to Terri Stewart was genuine. You, obviously, having spoken to you, are an intelligent man. As I said to you, you can string a few words together and you could be of real assistance to the aboriginal community in terms of mentoring and looking after young people.
39 You have done it very hard. You have lived in circumstances of violence, of drugs and alcohol abuse and you survived Baltara, you survived YTC and you have survived gaol. You have a real story to tell the young people of your community, to tell them what can happen.
40 As I have said, I found that you were genuine and sincere in what you said.
41 You also indicated that until this particular hearing, you had never really listened much to what is said in court and that is absolutely typical of young aboriginal people in your situation. That is one of the things the Koori Court is designed to achieve.
42 Mr Roper, the prosecutor, took some time to go through the statements of the victims, even though there were no victim impact statements filed, and read to you what they have said about the fear and the shaking and the ongoing difficulties, certainly at that early stage, that they had all had. It was clear to me that perhaps for the first time in your life, having read the psychiatric reports, that what you have done to those people and the fear that you placed them in, and they were virtually all women, which you should be ashamed of and I accept are, came home to you.
43 The elders reinforced that and you maintained contact with them and accepted what they were saying to you about the gravity of what you had done. They pointed out to you, and I understand you accepted it, that it is not all about you. It is what you do to other people and that is the effect it has on them and also the effect it has on the community that, in terms of the Koori Court, what you do every black fella has to wear.
44 You do not get a discount simply for appearing in the Koori Court but what does happen is a sentencing judge is in a much better position to make an assessment as to genuineness of remorse and determination to rehabilitate. Whether that can last is entirely up to you, Mr Lawson, but I accept that certainly at the moment it is genuine, I think probably for the first time in your life. The way you spoke to Ms Stewart indicated that you are a man with a considerable amount of warmth in you if you wish to display it.
45 I do not see any real point in this in going into the real detail of your childhood. You know it much better than anybody else does and it is contained in the psychiatric reports that were tendered, as well as the sentencing remarks of Judge Pilgrim, if anybody wants to read it. Suffice to say this, that you went into care as a young boy and that became your home.
46 As a youngster you saw violence, you saw considerable alcohol abuse and, as you described to Ms Swan, you essentially, when in drinking sessions between the adults, the boys were encouraged to fight each other for the entertainment of those adults.
47 You, up until recent times, could not really see anything wrong with that. I think you now can.
48 You started drinking, at the age of 11, with your cousins. I understand what that means. You started using cannabis at the age of 11 years. You used cannabis daily between 13 and 19. You started using amphetamine at 19. Your criminal behaviour increased with that amphetamine use and you started to use ice. As a consequence of that you started what you described as your first big sentence in 2005 and I have already indicated the very significant sentence that you received just a couple of years later.
49 As a boy, you were dealt with in the Children's Court and those priors are not before me and I do not need to go through them. From what I can gather it had essentially been for fighting.
50 You have been diagnosed as having an antisocial personality disorder. Whether that be right or not I do not know but you clearly have great problems with stress, anxiety and frustration.
51 To an independent observer, bearing in mind the propensity, I suppose, to fight, you have anger issues. Both Aunty Joan and respected person, Jackie, talked to you about all this. It again became clear that one of the things that is turning you around is that you have come to realise that all the things that matter to a black fella, family, sorry business and contact with country are all denied to you while you are in gaol. I accept that you are now looking at and have actually commenced programs and talking to people in endeavouring to deal with your grief.
52 As I said to you the other day, having now been involved in dozens of these situation in Koori Court, the one common denominator, the one thing that flows through just about all of them is never having dealt properly with sorry business and it just creates an anger and a hole and that does not fill it, okay, and you know that and the elders know that and we all know that.
53 The prospects of your rehabilitation are entirely up to yourself. I think that you now have a deeper understanding of what occurs to victims and that, in a legal sense, is called empathy. You have a much better understanding of what matters in life and what you do not want.
54 When you went back to Mildura, and things had moved on, you had been in gaol while your cousins and your bros, had had children and got on with their lives. You are in a position now where you do have your own children. They are available to you to be loved when you get out and you have got a strong partner who, as I said, is to stand by you.
55 In those circumstances, if you can reconnect and connect again with culture in an adult way, I suppose, even though you have never really had an adult life in the community, there is no reason why you cannot get your life together and be a very useful member of the community which is what is in a couple of those reports.
56 The risk of you re‑offending is all going to depend on whether you stick needles in your arm, I think. We all know that and that is a matter for you. You have got programs available to you. I am sure you are in contact with the liaison officers.
57 Parole board, it is a matter for them. I can not do anything about that. I simply say, as they will clearly understand, that if and when deemed fit to be released on parole, it is important that circumstances be put in place where, if possible, you are not put in the desperate strait and the depression that comes about when you do return to Mildura where you should have had a happy childhood.
58 In situations such as this, despite the seriousness of the offending, I am often minded of the words of the Court of Appeal in the DPP v Leach where it was said:
Particularly important that this Court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which rebounds very much to the benefit of the community.
59 That is not only the Koori community, that is the whole community.
60 I had some discussion with counsel about what mitigating factors, if any, that the addiction to drugs could be.
61 The case of R v Lacey goes into that, and I just find it very, very difficult to hold a person responsible for starting the use of cannabis and alcohol when they are 11 years old.
62 In R v McKee, Buchanan JA said:
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs.
63 And it is quite clear from these matters and the earlier matters that you are basically on ice and uncontrollable when they have occurred:
I would in that case of adult's despair and low self regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.
64 That is exactly what has happened here when you started when you were a little boy. No‑one can turn that around except you.
65 In the end it is serious offending and I know you do not shy away from that.
66 All I can do, as a sentencing judge, is give the parole board the opportunity to release you at a time earlier than might otherwise have been the case bearing in mind your determination to rehabilitate and your now recognition of where things have gone very wrong in the past.
67 That healing process may be a lengthy one but having spoken to you, I can tell you it is certainly the view of the elders you are an intelligent young man. As I said to you, you are intact, you are physically okay, your brain is okay and there is no reason why you cannot do this. Unfortunately it is going to have to be delayed for a while and there is nothing we can do about that.
68 Taking all those matters into account, and bearing in mind that it is serious offending and you have done it before:
69 On Charge 1 ‑ 36 months;
70 On Charge 2 ‑ 36 months;
71 On Charge 3 ‑ six months;
72 On Charge 4 ‑ 12 months;
73 On Charge 5 ‑ 36 months;
74 On Charge 6 ‑ 12 months;
75 On Charge 7 ‑ 42 months;
76 On Charge 8 ‑ 12 months.
77 I direct that four months of the sentence imposed on Charge 1, four months of the sentence imposed on Charge 2, Charge 3 is to be wholly concurrent, two months of the sentence imposed on charge 12, four months of the sentence imposed on Charge 5, two months of the sentence imposed on Charge 6 and two months of the sentence imposed on Charge 8 are to be served cumulatively upon each and upon the sentence imposed on Charge 7. That gives an effective head sentence of five years.
78 I am very conscious, in this situation, of the principles of totality. In those circumstances I have reduced what might otherwise have been the sentence for somebody with such a significant criminal history. I also take into account in determining that you be eligible for parole after serving a minimum period of two years and six months, that is to allow the parole board to give you that opportunity and bearing in mind that by that period of time you will have been in gaol for four and a half years and you will have been in gaol for ten and a half years, in effect, other than a few months.
79 There is no PSD to be declared.
80 Just so that you understand the benefit of the way you have conducted this, that is by pleading guilty and getting rid of a trial and everything else, had this gone to trial and had you been convicted, even though you had already done a couple of years, you would have got seven and a half with a five.
81 Because of the theft of the motor vehicle charge, your licence to drive a motor vehicle is cancelled and you are disqualified from obtaining one for six months.
82 Good luck to you, Mr Lawson.
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