Director of Public Prosecutions v Lean
[2014] VCC 2311
•11 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00728
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBIN ELAIN LEAN |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2014 | |
DATE OF SENTENCE: | 11 July 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Lean | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2311 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – failing to answer bail
Legislation Cited: Crimes Act 1958; Bail Act 1977, s30; Sentencing Act 1995
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Picone | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr R Lawrence | Pica Criminal Lawyers |
HIS HONOUR:
1 Robin Lean, you have pleaded guilty to one charge of armed robbery which carries with it a maximum sentence of imprisonment of twenty-five years, and the summary charge of failing to answer bail, which carries with it a maximum sentence of imprisonment of 12 months.
2 The circumstances of your offending are set out in the Prosecution Summary which is exhibit A your plea hearing. Those circumstances are not disputed in any way and little point is served in restating them in the course of these sentencing comments.
3 It is not in issue that your crime was spontaneous and bore no aspect of sophistication or planning. Neither is it I issue however;
· That it involved a significant episode of violence visited a victim of small stature
· That in the course of the crime your victim was initially pinned by you against a tree and was repeatedly punched and later struck a number of blows as she pursued you in an attempt to regain possession of her camera which was in the hand bag you stole from her;
· That your offending involved the brandishing by you of a knife which you held in the close proximity of your victims right eye the blade of which made contact with her cheekbone in the immediate vicinity of her eye nicking her skin and drawing blood.
· That your offending was such that it was likely to have involved and involved significant emotional trauma to your victim;
4 Whilst I accept that your behaviour in this instance involved an absence of planning and the use of a weapon which you were motivated to carry primarily for your own protection and not for the purposes of the commission of the crime your attack upon your victim involved significant acts of violence and your behaviour requires denunciation in the strongest possible terms.
5 Your criminal history includes convictions entered against you in this Court on 23 July 2013 with respect to one charge of common assault, one charge of criminal damage and one charge of intentionally causing injury.
6 When Judge Gamble initially sentenced you on 24 July 2013, he set out, in the course of his sentencing remarks, your relevant person history. That history, which appears in paragraphs 38 to 50 of His Honour’s sentence (which is Exhibit 4 in in this matter )is a matter of record and does not require repeating.
7 It is clear that your life has involved few periods of stability; the abuse of drugs from an early age; and a number of instances in which you were both physically and sexually abused.
8 You left school, having completed Year 9. By the age of 13 you had entered into a relationship which endured for a significant amount of time, with a partner who was abusive to you both physically and emotionally
9 To your credit, notwithstanding the instability in your life, at the age of nineteen you completed a Certificate II in Animal Studies at the NMIT in Fairfield, your intention at that time being, through further study, to work as a qualified veterinary nurse.
10 As the result of the offences which brought you before Judge Gamble, whilst you were initially bailed, your bail was revoked and you then spent a period of time in custody. At that time, you were pregnant and you suffered a miscarriage.
11 You were sentenced by Judge Gamble to undergo a Community Corrections Order. The Order was made for a period of twelve months. Pursuant to that Order, you were to undertake treatment and rehabilitation programs to address your drug abuse, alcohol abuse; to undergo mental health assessments and treatment; and to undergo programs or courses aimed at addressing the factors relevant to your offending.
12 In a report dated 8 January 2014 which dealt with the reasons why proceedings were instituted against you with respect to a breach of your Community Corrections Order, your Community Corrections Officer commented:
“Since attending for induction, Ms Lean has engaged and attended this service sporadically. As a result of this sporadic attendance and concern at Ms Lean’s mental health, a home visit was conducted on 8 August 2013. At this time Ms Lean was not at the Cherrywood address so an appointment card was left for her in the mailbox.
When attending for supervision, Ms Lean often presented in a highly distressed state, continuing to report self-harm and suicidal ideation and planning. Ms Lean also discussed ongoing instability at her residential address, indicating that this often made it difficult to attend appointments and manage herself accordingly.”[1]
[1]Exhibit 2
13 In the course of your plea before Judge Gamble, a report was prepared by Mr Jeffrey Cummins, forensic psychologist.
14 In that report[2], Mr Cummins opined that, as at 17 June 2013, you presented with an untreated Chronic Adjustment Disorder, and most probably from an untreated Complex Post-Traumatic Stress Disorder.
[2]Exhibit 3
15 Whilst it is not put that in this instance there are any Verdins’[3] type principles which should be taken into account in your sentencing; I am satisfied, having regard to:
[3]R v Verdins & Ors (2007) 16 VR 269
· The diagnosis made by Mr Cummins as at June 2013; and
· The comments to which I have referred from your breach report in January 2014;
that at the time of this offending, the treatment recommended for you by Mr Cummins had not eventuated and that you probably presented with the mental health issues reported upon by Mr Cummins.
16 It is put by Mr Lawrence in the course of his plea on your behalf which I accept, that at the time of Judge Gamble’s sentencing and thereafter until your subsequent imprisonment , your life was chaotic by reason of:
· Your drug use;
· Your unstable accommodation which involved at times sleeping on the streets and at other times staying with friends and associates; and
· Your precarious mental health
17 During February 2014, you committed a number of offences involving burglary and theft. You were subsequently convicted of charges of assault and resisting police (these charges arising out of your arrest on that occasion) and handling stolen goods.
18 On 13 April 2014, you were sentenced to a period of two months’ imprisonment with respect to those charges. This was the first custodial sentence that you received.
19 Your breach of the Community Corrections order imposed by judge Gamble was dealt with by His Honour on 14 May 2014 at which time;
(i) That order was set aside; and
(ii) You were sentenced to twelve months’ imprisonment with respect to your primary offences which sentence was wholly suspended. A $300 fine was also imposed with respect to your breach of the Community Corrections Order.
20 At the time of your imprisonment in April 2014 you came under the care of the Mental Health staff at the Dame Phyllis Frost Centre, which care is continuing.
21 Whilst in custody, you have undertaken a Certificate I in Education for Adults and a Certificate II in Kitchen Operations, which involved training in the preparation and service of espresso coffee.
22 These latter matters speak to your credit and to some extent to your prospects of rehabilitation, as does the fact that you are currently working in a horticulture program managed by the Dame Phyllis Frost Centre for four days a week and you are undertaking an English program for one day a week.
23 It was put on your behalf and I accept that :
(a) Your offending in this instance was unplanned and spontaneous;
(b) At the time of your offending, your life was unstable and your behaviour was influenced by the fact that you were affected both by your use of methamphetamine and alcohol and the presence of the chronic psychiatric disorders diagnosed by Mr Cummins as at June 2013, which he described as a Chronic Adjustment Disorder with mixed disturbance of emotions and conduct and a complex Post-Traumatic Stress Disorder;
(c) At the time of this offending you were drug affected;
(d) You have entered an early plea in this matter;
(e) You acknowledge your need for mental health treatment to assist you in your addictive behaviour;
(f) Given your young age, your prospects of rehabilitation are real and should be taken into account;
(g) Your rehabilitation prospects are demonstrated by the fact that you have undertaken courses whilst in prison to equip you to engage in employment involving food handling and working as a barista;
24 As to the timing of your plea, I accept that it was entered at a relatively early stage,. Your pleas of guilty have saved the community the very significant time and court expenses associated with a committal or a trial and the inconvenience, pressure and distress caused to witnesses and particularily your victim by a requirement to give evidence. Equally, I am satisfied that you have entered an early plea and that due regard should be given to that fact in fixing the sentence which is just in all the circumstances of the present case. Your plea also satisfies me that you accept responsibility for your behaviour. It follows that I am satisfied that an appropriate discount in the sentence which I would otherwise have imposed is warranted in this instance
25 That you committed this offence only three months after agreeing to comply with the conditions of a Community Corrections Order however is a matter which I must take into account in sentencing you in this instance in that the circumstances of your offending are aggravated by reason of the fact that they were committed whilst you were the subject of that order.
26 Notwithstanding that comment you are only 24 years old and I accept that given your young age, your prospects for rehabilitation should be given due weight and I am satisfied that you have recently taken some positive steps in that sense.
27 In sentencing you, I must impose a sentence which is just in all the circumstances. I must have regard to the seriousness of your offences, your culpability for the commission of the offences and the effect of your offending upon your victims. I am required to take into account the need to denounce your behaviour as being totally unacceptable in our community, the need to punish you for your offending and to fix a sentence which ensures you are appropriately punished. Equally the sentence which I impose should not be crushing given your age. I must also give appropriate weight to issues of general and specific deterrence and the need to protect the community, but at the same time, the interest of the community which is served by ensuring the rehabilitation of offenders and their integration into the community.
28 It is my obligation in sentencing you, to make a statement which makes it clear to the community that your criminal behaviour is serious and will not be tolerated. Equally given your history now of involvement in 2 instances of criminal activity involving violence raises specific deterrence and the protection of the community as a very relevant sentencing issues.
29 Given the nature of your offending and taking into consideration all of the matters to which I have referred I am satisfied that it is appropriate to impose upon you the following sentences;
(i) Upon the charge of Armed Robbery you are you are convicted and sentenced to a term of imprisonment of 3 years and 6 months.
(ii) Upon the charge of failing to answer bail you are you are convicted and sentenced to a term of imprisonment of 1 month.
30 These sentences are to be served concurrently
31 The result is that I have imposed an effective term of imprisonment of 3 years and 6 months.
32 I will order that you serve a minimum term of imprisonment of 2 years and 4 months before you become eligible for parole.
33 In fixing your minimum sentence, I have borne in mind all the matters to which I have referred in the course of my sentence, and in particular
(i) The serious nature of your offending and the duration of it;
(ii) Your young age:
(iii) The factors which are personal to you to which I have referred;
(iv) The issues of general deterrence which arise in this instance;
(v) Your recognition that you would be assisted by appropriate counselling and medical treatment and your prospects for rehabilitation:
(vi) Your prosects of rehabilitation;
(vii) The benefit to both yourself in your effort to rehabilitate yourself in respect of which you have initiated some positive steps towards and the benefit to the community of your being supervised for a significant period of time after your release from custody.
34 Pursuant to s.18(4) of the Sentencing Act I declare that the total period of pre sentence detention to be taken into account as time served in respect of these sentences is 48 days and that this declaration be entered in the court .
35 Pursuant to section 6AAA of the Sentencing Act 1991 but for your plea of guilty I would have imposed a sentence of 5 years and with a minimum of 3 years and 6 months
36 I will make the order sought in this instance under s64ZF(2) of the Crimes Act which I do taking into account the seriousness of your offending, your relevant history.
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