Director of Public Prosecutions v Lee

[2016] VCC 862

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00689

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE ROBERT LEE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2016
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Lee
MEDIUM NEUTRAL CITATION:	[2016] VCC 862

REASONS FOR SENTENCE
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Subject:  Attempted armed robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Nine months' imprisonment/30 month CCO.

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APPEARANCES:	Counsel	Solicitors
Director of Public Prosecutions	Mr T. Sherwood
The Accused	Ms S. Poulter

HIS HONOUR:

1Shane Robert Lee, on 17 June you pleaded guilty to one charge of attempted armed robbery for which the maximum penalty is 20 years' imprisonment.

2You also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, and a further summary charge of failing to comply with a bail condition.  The maximum penalty for each of these charges is three months' imprisonment or, 30 penalty units.  Through your counsel, Ms Poulter, you agreed to the summary matters being dealt with by me.

3You are aged 29 years and at the time that you pleaded guilty you also admitted a number of prior convictions resulting from 19 previous court appearances commencing on 9 October 2006.  You are a drug addict and over the course of the last ten years the kind of offences that you have been convicted of are those which one normally associates with a drug addict.  That is to say, drug offences and offences of dishonesty in one form or another.  Over the last ten years you have from time to time been afforded dispositions from the courts designed to assist in your rehabilitation.  Those dispositions included an intensive corrections order which you breached and two suspended sentences which you breached.

4In July 2013 you were granted a Community Based Order of 12 months which you completed but you reoffended within a short time after its completion.

5I set all of this out because it needs to be said that you have been given a number of opportunities by the courts to reform your ways but you have not made the best of the opportunities given to you.

6The circumstances of your offending are contained in a prosecution opening in writing that was admitted into evidence as Exhibit A.  Your counsel agreed that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

7On 3 September 2015 you were arrested and charged in Bendigo with two charges of shop theft.  These charges are to be dealt with in the Bendigo Magistrates Court on 1 July next.

8On 6 December 2015 you were charged with being drunk in a public place.

9On 20 January 2016 you were charged with further offending which preceded this offending.  Those charges were for going equipped to steal and cheat, and dealing with property suspected of being the proceeds of crime.  You were released on bail and it was a condition of your bail that you would not to be within 50 km of the city of Melbourne.

10Whilst on bail for those offences and, notwithstanding the condition I have referred to, on 22 January you were in St Kilda.  Whilst drug affected, you went to business premises in Acland Street armed with a pocketknife and, whilst pressing the pocketknife unopened against the attendant, you said “Don’t say anything, just open the till”.  You left the premises after the attendant activated a duress button.  A short time later you were arrested by police in Acland Street.  You were assessed as being unfit for interview and you later declined to answer questions.

11Attempted armed robbery is a serious offence as can be seen from the maximum penalty prescribed by the parliament.  However, I accept that your offending comes within what might be described as the lower end of the range for this kind of offending.  Whilst you attempted to rob a soft target you did so without making a direct threat and with the pocketknife closed.  I accept that your offending appears to have been unplanned and unsophisticated.  It is best described I think as opportunistic.

12You entered a plea of guilty at the committal stage and I treat you as having pleaded guilty at the earliest available opportunity.  For that you are entitled to a reduction in sentence.  You have saved the time and cost of a trial and the need to have to call witnesses to explain what you did.  The reduction in sentence will be explained later in my remarks.

13Importantly, I also treat your plea of guilty as evidencing remorse and I have taken this into account.

14You have been in custody and served 154 days of pre-sentence detention.

15At the time of offending you were aged 28 and you are now aged 29.  You have had no contact with your biological father.  However, despite all of your problems caused by your drug addiction, you continue to maintain the support from your mother and her partner whom you regard as your stepfather.

16You left school after completing Year 10 and you completed an apprenticeship as a bricklayer when you were approximately 20-years-old.  You were active in sport playing football both as a junior and in senior country football.  Unfortunately you have a long history of alcohol and poly drug abuse starting from your early teenage years.  I was told and accept that you also have a history of anxiety and you have been medicated for depression.

17Your drug of choice was heroin.  I was told and accept that you have remained drug-free since you have been in custody and you have been receiving methadone replacement therapy whilst in custody.

18You have attempted on two occasions to undergo residential treatment for your drug addiction but these have been unsuccessful.  These attempts were funded by your mother and her partner which is an indication of the level of support they have endeavoured to give to you.  Your time in custody has not been a pleasant one.  It never is, however, because of earlier prison riots, through no fault of yours, the Melbourne Remand Centre, where you have been located, has been in 22 hour a day lockdown for most of the time you have been incarcerated.  I accept that your time in custody has been very hard for this reason and I take this into account.

19Whilst in custody you have commenced programs such as “reconnect” and “harm minimisation”.  I was told and accept that the “reconnect” program is aimed at re-establishing relationships with family and to give you some insight into the ways in which your offending impacts on your family.  I was told that this program has given you insight into the effects of your offending such that you feel guilt and shame.  The other program, “harm minimisation”, is about managing your own environment so that you know what you need to do in order to stay away from drugs, such as staying away from adverse peer influence.

20Ms Poulter told me that you have now come to realise that you must do something about your drug addiction yourself and, if you do not you will lose the family support that you still have.  I was told that it was your time in prison that has brought about this change and that you accept that you need support and treatment upon release especially in maintaining the methadone program for which you are currently receiving 40 mg per day.

21I was also told and accept that you have not experienced anxiety in custody and you are not presently in receipt of medication for this.  However, you want medication for anxiety available to you on your release.  Your ex-partner resides in Castlemaine and you have maintained contact with her and are hopeful of re-establishing trust with her and her family.  I was told and accept that you can attend when released upon a general practitioner in Castlemaine for treatment.

22In a strong plea your counsel asked that I impose a sentence of imprisonment and then place you on a Community Corrections Order with conditions.  She argued that such a sentence would appropriately address your level of offending and meet all the purposes of sentencing, especially those of general deterrence and denunciation but importantly also rehabilitation.  She submitted that what you require is a known release date so that proper structures are put in place to ensure that you receive the support that you will need upon release.

23Ms Foote, who appeared to prosecute, conceded that your offending was at the lower end for this kind of offending but it was aggravated by the fact that it occurred whilst you were on bail and whilst you were drug affected.  She submitted that the course for which your counsel submitted was within the appropriate sentencing range but your time served is not enough by way of an appropriate term of imprisonment.

24I agree with the submissions advanced by both counsel.  In most cases a sentence for this kind of offending, and where the offender has multiple prior convictions, is dictated by proper application of the principles of general and specific deterrence.  I have been persuaded that you should be afforded one last chance to attempt to get your life in order.  You are a young man with a supportive family and the sooner you realise that you can live a worthwhile life without drugs the better.  

25The choices in sentencing you are that you receive a term of imprisonment and I fix a non-parole period, or that I sentence you to a term of imprisonment with a Community Corrections Order to commence upon your release.  Whilst neither of these dispositions provides any certainty that you will receive all the help that you need, I am inclined to the view that a Community Corrections Order commencing after you serve a term of imprisonment is the best available disposition to give you the best opportunity to rehabilitate yourself.  It is in the community’s best interest that you do so.  However, you should be under no illusions.  If you breach the Community Corrections Order I impose, either by reoffending or by not complying with the conditions I impose, you will be brought back before me and I will deal with you.

26To this end I had you assessed for suitability for a Community Corrections Order.  Because of your past history, and the fact that you have breached other dispositions, you were assessed as unsuitable.  Notwithstanding that assessment, I am prepared to give you one more chance because you are a drug addict and I understand that a certain level of patience must be maintained in order to bring about your rehabilitation.  However, you must realise that there is a point where the courts' patience will run out.  You have reached that point and, as I said earlier, if you fail to take advantage of the opportunity I have given to you as urged by your counsel, if you come back before me because you have breached the Community Corrections Order in any way, I will deal with you.

27On the charge of attempted armed robbery you are convicted and you are sentenced to a term of imprisonment of nine months.

28On the charge of committing an indictable offence whilst on bail you are convicted and sentenced to a term of imprisonment of two months.

29On the charge of failing to comply with a bail condition you are convicted and sentenced to a term of imprisonment of one month.

30I direct that the terms of imprisonment that I have imposed be served concurrently.

31I declare that 154 days be reckoned as time already served under the sentences imposed this day and be entered into the records of the court and deducted administratively.

32In addition, on the charge of attempted armed robbery I make a Community Corrections Order with conviction.  The term of the order will be for a period of 2 ½ years commencing upon your release, or on 22 September 2016, whichever is the earlier date.

33There will be conditions as follows:

34That you undergo treatment and rehabilitation for drug dependency, including testing for drugs and that immediately upon release you continue on the methadone program;

35That you undergo treatment and rehabilitation for alcohol;

36That you undergo treatment and rehabilitation for mental health;

37That you undergo treatment and rehabilitation programs to reduce reoffending;

38That you undergo supervision;

39That you undergo judicial monitoring

40For the purposes of s.6 AAA of the Sentencing Act 1991 I declare that, had it not been for your plea of guilty to the charge of attempted armed robbery, I would have sentenced you to a term of imprisonment of 2 ½ years and I would have directed that you serve a minimum term of 20 months' imprisonment.

41The prosecution seeks ancillary orders for disposal of the pocketknife and items of clothing.  Those orders were not opposed and I will sign them.  The prosecution also seeks an order for the taking of a forensics sample.  That order was also not opposed and, for the reasons contained in it, I have also signed that order.

42Mr Lee, there are a number of things about that.  The first is that I have been asked to, and I will sign, what is called a forensic sample order which means that a police officer can approach you whilst in custody to take a forensic sample from your body.  Do you understand that?

43OFFENDER:  Yes I do.

44HIS HONOUR:  That will probably be done in the next month or so.

45OFFENDER:  All right.

46HIS HONOUR:  The other is that you do not have to enter into this Community Corrections Order unless you want to.  Do you understand?

47OFFENDER:  Yes I do. 

48HIS HONOUR:  But if you do I have made it quite clear, have I not?

49OFFENDER:  Yes you have.  I've understood every word you've said.

50HIS HONOUR:  All right.  I hope you have understood and I hope you comply.  The other thing is that your counsel indicated that I should also impose a condition for community work.  I've given a lot of thought to that.  I'm not convinced that that's the right course, given that you want to go and live in the Castlemaine area.  I haven't made that a condition for two reasons.  (1) I think that nine months' imprisonment is enough punishment, but most importantly, I don't want to create any opportunities for you to come into contact with other offenders, which I think occurs on community work.  The less you see of other people like you, the better.  So I've decided not to impose that condition, do you understand? 

51OFFENDER:  Yes I do.

52HIS HONOUR:  Very well.  Mr Lee, I've signed the Community Corrections Order and the upshot of it all is, is that you've served 154 days, which give or take a day or two, is about five months so you have about four months more to serve.  Do you understand?

53OFFENDER:  Yep.

54HIS HONOUR:  And then you'll be released on this order.

55OFFENDER:  Yep.

56HIS HONOUR:  You'll have to report to Bendigo Corrections within two days of being released, you understand?

57OFFENDER:  Yep.

58HIS HONOUR:  Now, it's a matter for you but if I were you I would put steps in place now to make sure that you can continue on the methadone program immediately upon your release.

59OFFENDER:  Yes.

60HIS HONOUR:  So you'll need to make contact - perhaps you might have your partner make contact on your behalf with a general practitioner.

61OFFENDER:  Yep.

62HIS HONOUR:  And line up a pharmacy.

63OFFENDER:  Yep.

64HIS HONOUR:  In Castlemaine, do you understand? 

65OFFENDER:  Yeah I do.

66HIS HONOUR:  So that there's no difficulty about it.  Now, the other thing that you must remember is there is a condition for judicial monitoring.

67OFFENDER:  Yep.

68HIS HONOUR:  Which means effectively I'm going to keep an eye on you, do you understand?

69OFFENDER:  Yeah I do.

70HIS HONOUR:  The first day for that will be 22 December.

71OFFENDER:  Yep.

72HIS HONOUR:  At 9.30 here.

73OFFENDER:  Yep.

74HIS HONOUR:  You'll have to be here.

75OFFENDER:  Yep.

76HIS HONOUR:  Or you may be able to do it from Bendigo.

77OFFENDER:  I'll come - I'll come down.

78HIS HONOUR:  All right.  Now, when that happens I will receive a report.

79OFFENDER:  Yep.

80HIS HONOUR:  And if you've stepped out of line in any way by not complying with the conditions imposed, I will deal with you.  You'll get a shocking Christmas present, do you understand?

81OFFENDER:  Yes.

82HIS HONOUR:  So I don't want you to say that you didn't understand anything I've said.

83OFFENDER:  No, no.  Crystal clear.

84HIS HONOUR:  Good, that's what I want to hear.  Let me tell you, it's all being recorded and I'll have a transcript and if you step out of line I'll remind you of what you said.

85OFFENDER:  Yeah.

86HIS HONOUR:  Do you understand? 

87OFFENDER:  Yeah I do.  Thank you.

88HIS HONOUR:  Very good.

89OFFENDER:  So what's my exact release date, Your Honour, if I may ask?

90HIS HONOUR:  Well, it should be - I'm not certain yet.  The Corrections will have to tell you that.  What date did you go into custody? 

91OFFENDER:  January 22nd.

92MS POULTER:  2 January, I think it was. 

93HIS HONOUR:  22 January.

94OFFENDER:  Yes, the 26th, I think. 

95MS POULTER:  Nine months.

96

HIS HONOUR:  Nine months from then so it will be something like

22 September.

97OFFENDER:  All right.  No worries.

98HIS HONOUR:  All right?

99OFFENDER:  Yep.  Thank you.

100HIS HONOUR:  Very well.  Would you take Mr Lee back into custody please? 

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