Director of Public Prosecutions v Leaver

[2016] VCC 163

Pages 1 - 1   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted  Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01968

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM LEAVER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2016
CASE MAY BE CITED AS:	DPP v Leaver
MEDIUM NEUTRAL CITATION:	[2016] VCC 163

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Roper	Office of Public Prosecutions
For the Accused	Mr. S. Johns

HER HONOUR:

1Liam Kenneth Leaver, you have pleaded guilty before me to one charge of armed robbery.  The facts underlying your offending are as follows.

2At about 6.23 in the morning of 5 March 2006 you went to the Mobil Service Station at Mountain Highway, Bayswater armed with an imitation semi-automatic  black handgun.  You were not disguised and your face was clearly visible.  You confronted the female console operator, Christine Patmore who was then aged 53, produced the handgun and demanded cash, saying, "This is a hold-up, I want your money" and while you were saying that, you clicked the gun.

3Ms Patmore starting opening the till to give you the cash, and around this time you said, "Don't muck around, I've had a fucking bad night."  Ms Patmore handed over what she believed to be about $80 which you put in your pocket along with the gun and walked out.

4CCTV cameras operating at the mobile service station produced quality images of you committing the armed robbery.  You dumped the jacket and cap which you had been wearing and handgun at a nearby park which were located the following day by a council worker and handed over to police.  One hundred dollars was found in the jacket, which is interesting, because presumably that was the proceeds of the armed robbery and says something, in my view, for the organisational state of mind you were in, if you like, at the time.

5Eventually, forensics examined the handgun which was found to be an imitation handgun with a close resemblance to a 9 mm Beretta.  Swabs were taken from the items seized at the park and your DNA discovered.  Soon after committing this armed robbery, you left Victoria and went to live in Queensland and on 7 September 2006 you were convicted of an armed robbery which was committed by you on 17 May that year.  You were sentenced to a term of imprisonment of four years, nine months of which you served, the rest being suspended.  A forensic sample was ordered to be taken.

6In 2009, the informant in the armed robbery matter in Victoria left the Knox CIU, but in the meantime, a DNA match was made implicating you in the Victorian armed robbery.  No steps were taken to arrest you until the informant returned to the Knox CIU in March 2014 and noticed that the investigation had been reactivated following the receipt of a national DNA match report.  Enquiries revealed you were living at an address in Parkhurst, Queensland and a charge and warrant were issued on May 6, 2015, which was, in itself, a further delay.

7You were arrested by Rockhampton CIB detectives on 6 August 2015 after you attended the police station there by arrangement.  The warrant was executed and you were held in custody for six days pending the arrival of detectives from Victoria.  An application to extradite you to Victoria was made on 7 August 2015 and granted on 11 August and you were released on bail with a surety to appear at the Melbourne Magistrates' Court for a filing hearing on 17 August 2015.  You voluntarily provided a DNA sample to police and were, in fact, never formally interviewed. 

8You pleaded guilty to this armed robbery at a very early stage, that is, on 9 November 2015 at a committal case conference.   The maximum penalty for armed robbery is 25 years imprisonment. 

9I now turn to your personal circumstances.  

10HER HONOUR:  You are now 31 and I note that at the time that you committed this armed robbery, you were 21.  I also note that no victim impact statement has been made or received on this plea, however as I stated to you in informal remarks on this plea, I have no doubt that Ms Patmore would have been adversely psychologically affected by your actions; that she would have, as is standard in cases of this kind where soft targets are subjected to the terrifying experience of being the subject of an armed robbery, generally shaken in her sense of safety in the world, her capacity to carry out this employment and so on, and her life generally rendered more difficult. 

11At the time of this offending, you were, it can probably be said, a poly drug-user.  You had had a long term cannabis problem.  You had been an amphetamine or speed user for some years and had recently been introduced to methyl-amphetamine or ice, to which you quickly became addicted as is usually the case, and were using about half a gram per day.

12You were born in Rockhampton in Queensland and have an older brother.  You come from a close family which, it would seem, is not one used to having its members appearing before a court of law.  You eventually left school part way through Year 11, to begin an apprenticeship as an industrial painter.  Prior to that, you did well academically and excelled in sports, especially athletics and rugby league, in the latter, playing at a State level, until a serious leg injury ended that sporting activity.  Both your parents continue to be heavily involved with rugby clubs and indeed, you currently volunteer for the local touch rugby league during the week and are a League-Safe representative for your son's rugby club. 

13You worked in your painting apprenticeship for 12 months before then going to work at a local meat works for 12 months, leaving to start in the Pest Control industry and during that time, completed relevant TAFE qualifications.  You also, leading up to 2005, worked as a car detailer and trades assistant and as a butcher's assistant.  You moved to Melbourne in February 2005 with a friend, intending to work in Victoria for a while and worked for a pest control company until you returned to Queensland following the commission of this armed robbery in March 2006.

14You were living in share-accommodation at the time of your offending.  You had stopped work about two weeks prior to the offence due to what was, your counsel has termed, a party lifestyle and drug consumption, and you were simply unable to go to work.  You were using half a gram of ice per day, as I have said, smoking marijuana, drinking excessively, and in the two weeks after leaving work, had exhausted the money that you had saved.  You had apparently begun a big bender about three days before the offending.  You had a fight with your girlfriend that night, and found a replica gun in the house.  You made an impulsive decision to commit an armed robbery and drove to the first place that you could see that was open which was about a kilometre from your home.

15After the offence, you packed up your belongings, returned to Queensland where you kept using drugs, which also included steroids which you have been abusing.  On 17 May 2006, you were at a party drinking, using speed, grabbed a knife and with a friend, drove to a nearby service station which you held up, waking up the next morning in the middle of an oval surrounded by vomit. 

16You went to see a lawyer that day, handed yourself in and were sentenced to a term of imprisonment of four years which was suspended after serving nine months.  You also served a further three months in 2007 for breaching a suspended sentence because you possessed amphetamines.

17You have some old prior matters.  In 2003 in Rockhampton, you were convicted and fined for behaving in a disorderly manner and earlier in the same year, received a suspended sentence for assaults occasioning bodily harm.  I don't regard them as particularly relevant to the sentencing exercise before me.

18It appears that after committing the armed robbery in Queensland, you made attempts to clean up your life, although it seems to have taken some time, which is not unusual for someone who has got a long-standing drug problem.  However, I am satisfied that you have completely reformed and rehabilitated your life in the intervening period. 

19In 2008, you entered a relationship with Cara Ford, a person who you met whilst you yourself were in rehabilitation for drug use.  The two of you formed a relationship and you had two children in quick succession in 2010 and 2011, but by August 2011, Ms Ford had relapsed into drug use and you have been the sole carer for your children since late 2011.

20You have founded your own pest control company.  You own a house which you rented out once your relationship with you and Ms Ford broke down and you live at the rear of your parents' home where both they and you care for your children.  You have returned to full-time work since 2014, presumably because your children started attending school.

21I received a number of very impressive references from people with whom you have worked, and people who have known you over the years, attesting to the way in which you have reformed the life that you now lead, the success of the business that you have founded, and also attesting to your care of your children and your devotion to them as a single father.

22It has been conceded by the prosecution on what I regard as very sound grounds, that an appropriate disposition in this case is a sentence of imprisonment to be wholly suspended.  Delay is always a matter that the courts take into account.  This was not a delay caused by you going into hiding.  It is quite clear that your whereabouts have always been known, and but for understandable reasons, you were not detected for some years. 

23As I have said, in the interim you have completely rehabilitated yourself.  At the time of the offending, you were aged 21 and were therefore pursuant to the Sentencing Act in Victoria, a young offender whereby rehabilitation would be a major consideration for any court dealing with you at the time.  As I have said, if you had been apprehended at the time, there is no doubt you would however have received a gaol sentence. 

24The authorities have made it clear that where there has been delay and in the interim, an accused person has rehabilitated themselves and presents to the court in an entirely different position to that which they were in at the time of the offending, this should be taken into account, and that the welfare of the community is not well-served by sending rehabilitated persons to serve a term of imprisonment thereby undoing all the good work that has been done in the intervening years. 

25It is quite clear that you come from a good family and that your offending came about as a result of your drug addiction which has now resolved.  I see no point in depriving your children of a father, of putting an end to your business and basically, putting you in a less-positive position by sending you to serve a term of imprisonment.  I therefore propose sentencing you as follows.  Thank you, could you stand up please.

26In sentencing you I take into account your plea of guilty which I am satisfied is a true expression of remorse, particularly given your very good rehabilitation in the interim.  I regard your rehabilitative prospects as being excellent.  Delay in my view, is a very significant mitigatory factor in this case. 

27For the charge of armed robbery I am sentencing you to a term of three years imprisonment which is to be wholly suspended for a period of two years. 

28Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years and six months and ordered that you serve a minimum term of two years and six months.  Thank you.  You can have a seat. 

29All right, disposal orders.

30MR JOHNS:  Your Honour, I should just correct one thing in my outline.  I did not meet Mr Leaver until yesterday face to face.  I had taken instructions over the phone from him, and of course, the documents were already filed. 

31HER HONOUR:  Yes.

32MR JOHNS:  The three months for the breach, he was sentenced to three months for breach, but he was paroled the same day, so I just thought I had better bring that up.

33HER HONOUR:  It does not really matter.  That is fine.

34MR JOHNS:  If it's on the record. 

35HER HONOUR:  Thank you very much. 

36MR ROPER:  Just another thing on the record Your Honour, with the delay.  Detective (indistinct) is in court and that period when it was said that he did actually make considerable effort to try and get the extradition.

37HER HONOUR:  I am sure he did.  I am not being critical of police at all.

38MR ROPER:  No.

39HER HONOUR:  In fact, I think it is a pretty top effort to come back after - what - seven years and actually notice that, oh, this old file's been reactivated.  I think that is extremely praiseworthy and I am sure he ground his teeth and said "Why couldn't somebody else at this station have picked that up.  Why did it have to wait till I come back" so I am not, in any way, being - I was very conscious of the informant being in court.  I am in no way being critical of him.  Not at all, as I said I am impressed that you picked it up after all that time. 

40MR ROPER:  Thank Your Honour.

41HER HONOUR:  All right.  Thank you very much.  Now have we got the disposal orders.  Thank you.  I can return the original materials to you, thank you. 

42MR ROPER:  Is there is a declaration perhaps.

43HER HONOUR:  I note that six days of this sentence have already been served by way of pre-sentence detention, thank you very much.  All right. 

44MR JOHNS:  Thank Your Honour.

45HER HONOUR:  Thank you.  Thank you very much.  I thank counsel for their assistance in this matter, and all the best to you, Mr Leaver. 

46OFFENDER:  Thank you. 

47HER HONOUR:  Yes, we will adjourn to 10.30 tomorrow morning.  Thank you.

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