Director of Public Prosecutions v Leese
[2024] VCC 2448
•19 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-23-00824
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ETHAN LEESE |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August & 12 December 2023 | |
DATE OF SENTENCE: | 19 December 2023 | |
CASE MAY BE CITED AS: | DPP v Leese | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2448 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Armed robbery – kidnapping - make threat to kill - cause injury intentionally
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence:38 months' imprisonment, 19 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions on 17 August 2023 For the Director of Public Prosecutions on 12 & 19 December 2023 | Ms E. Fargher Mr F. Cameron | Office of Public Prosecutions |
| For the Accused on 17 August 2023 For the Accused on 12 & 19 December | Mr P. Kounnas Mr D. Gray | Cinque Oakley Bryant Lawyers Cinque Oakley Bryant Lawyers |
HIS HONOUR:
1 Ethan Leese, you have pleaded guilty to four charges: one of armed robbery and one of kidnapping, both of which carry maximum terms of imprisonment of 25 years; and making a threat to kill and causing injury intentionally, both of which carry maximum terms of imprisonment of 10 years.
2 You have admitted prior convictions. The prosecution has tendered and relied upon the summary of prosecution opening for plea dated 10 August 2023. I am not going to read it in its entirety but I shall summarise it briefly.
3 The offending occurred in the early hours of 1 November 2022 and arose as a result of contact between your victim and your 17-year-old brother. You were 20 years old at the time. Your brother and the victim met up and spent some time in the CBD on the evening of 31 October 2022. They met up with some other young males, and spent some time together before returning to the apartment in which your mother was living, and where you were, during the early hours of 1 November 2022.
4 The group, which included the victim and your then 17-year-old brother, arrived at those premises at about 12.30am. You were there. Soon after they entered the apartment you waved a large kitchen knife, which you were keeping inside the waistband of your pants. Two of the group went to bed at about 2.30 am, leaving you, your younger brother and another 17-year-old friend of his with the victim.
5 The attack upon your victim was initiated by your younger brother who asked your victim if he could try on one of two gold chains that were around your victim’s neck. Your younger brother put it around his own neck and said words to the effect that it was his. The victim responded by asking for it back. You then reacted by walking over to the victim and punching him with a closed fist to his jaw. That was the first assault which supports Charge 4 of intentionally causing injury.
6 You said to your victim:
'Don't talk to my brother like that in my house'
You then punched the victim again, and told him to give you his watch and bracelet.
7 You also grabbed the other gold chain that was around his neck and took it off him. The victim pleaded with you:
'Please don't do this'.
You responded by telling him to shut up.
8 You then also took his AirPods. The victim asked if he could leave. You again told him to shut up. You then patted your victim down before pulling out the knife from your waistband and holding it about 20 centimetres from him, pointing towards his face. And you said to him:
'Empty your pockets and give me your shit'.
9 He then handed over his mobile phone, charger cable and wallet. You then began looking through his wallet. Your younger brother and his companion endeavoured to unlock the victim's phone. You told the victim not to tell anyone and you threatened to kill him and his family if he did not obey your instruction. That conduct supports the charge of making a threat to kill.
10 You followed up your threat by saying:
'I know your address now so don't fuck with me'.
11 The other two young men who were present asked the victim for his bank details. He did not respond initially and you said to him:
'Don't fucking ignore them, answer them'.
12 Your victim then asked again if he could leave, saying that you had all his stuff. He provided his bank details. You and your two male co-offenders then rifled through his duffle bag and took property from it. You then asked your victim when he got paid, and how much he got paid. He told you. You then said to him:
'You better not be lying, I'll come over there and hit you again'.
13 You told your victim:
'I'm going to take the money from your account every week, make sure you don't change PIN code or lock the account, or I'll come for you'.
14 You asked for his Centrelink and MyGov details. Your younger brother tried unsuccessfully to unlock the MyGov account. He then followed up by punching the victim to the jaw. That is part of the allegation against you based on your complicity in that offending. Your victim was knocked to the ground. You then intervened and said to your younger brother:
'That's enough'.
and you pulled him away from the victim.
15 You then suggested tying him up, and you taped your victim to a chair with his arms behind his back. You then taped his legs to the chair. He was taken into the kitchen and you told him that you were going to keep him there until his pay came through. You then punched him again to the face and told him to sit there quietly. He remained there for several hours until early morning. He was punched again a number of times by your younger brother. You then repeatedly punched him and kicked him. This conduct is all part of the events supporting Charge 4 on the indictment of intentionally causing injury.
16 At about 7 am your mother woke up and emerged from the bedroom. She became angry and told you all to leave. Your brother used your knife to untie the victim from the chair and you, your brother and other members of the group that had arrived earlier walked with your victim to your older brother's nearby property. You went into the apartment where your brother was living. You emerged with him and he then intervened and organised for an ambulance to be called for your victim to be transported to hospital. He gave your victim back his driver's licence and Commonwealth Bank card. Your victim attended hospital and was treated for injuries which, according to his victim impact statement, included fractures to his nose, a nose bleed and cracked ribs.
17 Your co-offenders, including your younger brother, were arrested on 3 November 2022. You were arrested on 15 November and taken to the Fawkner police station, where you were interviewed. It is to your credit that you made what seemed to me to be remarkably frank admissions to the police about your conduct. During the course of your interview with the police you told them that you had thought that the victim had assaulted your sister. You sought to explain your behaviour as a vigilante attack upon your victim arising from that belief. The evidence suggests that you had never in fact met your victim prior to that day.
18 Your victim provided a victim impact statement in which he indicates not just the physical injuries but also the ongoing psychological effect of the attack upon him and the ongoing effects with which he has had to cope: fearing for his safety and not feeling safe even on public transport. He ends by saying:
'I'm always looking over my shoulder'.
19 Your counsel provided me with an outline of defence submissions dated 11 December 2023, which is Exhibit 1 on the plea hearing. I also received a report from Forensicare dated 16 October 2023, which was obtained because of concerns that you might be suffering from schizophrenia and bipolar disorder. The net effect of the report is that there was no evidence that you were in fact suffering from either of those two disorders, although there is reference to other mental disorders which are dealt with in greater detail in the report of Ms Cidoni, psychologist, dated 11 December 2023, which is Exhibit 3.
20
Exhibit 4 is a letter from Mr McNutt, forensic caseworker at ReStart, on behalf of the Australian Community Support Organisation. Exhibit 5 is a letter from a representative of the National Disability Insurance Agency supporting the fact that you have been deemed to be eligible for funding from that organisation as a result of a mild intellectual disability. Exhibit 6 is a number of certificates and other evidence of various rehabilitation measures and courses that you engaged in during your time on remand in custody. Exhibit 7 is a letter dated
7 July 2023 from a facilitator from the ATLAS remand program at Marngoneet Correctional Centre.
21 Your counsel dealt with your family background, and I note that in particular the report of Ms Cidoni also deals in some detail with your family background. The report of Ms Cidoni is summarised in the section ‘Summary and Opinion’ beginning at paragraph 104. I am going to read three paragraphs because it seems to me that they really sum up the effect of your upbringing and identify the mental disorders that you currently suffer from.
22 In paragraph 111 Ms Cidoni says:
'His cognitive deficits, particularly in verbal reasoning and memory, might have hindered his understanding of the potential consequences of his actions or the ability to negotiate alternative solutions in stressful situations. His difficulties in memory retrieval might have made it challenging to weigh the long-term risks and benefits of his behaviour, leading to impulsive actions.’
23 She goes on to say:
‘His trauma history also played a role in his offending behaviour. Individuals with PTSD often experience hyperarousal, which can manifest as irritability, anger and heightened reactivity to perceived threats. In Mr Leese's case, his traumatic history and PTSD symptoms may have made him more prone to reacting aggressively or impulsively in stressful situations, such as conflicts with others or confrontations with authority figures. PTSD can also lead to emotional dysregulation, making it difficult to manage intense emotions, potentially contributing to his aggressive behaviour during the alleged offending.
‘The adverse childhood experiences he endured, marked by severe abuse, neglect and parental substance abuse, have left an indelible mark on his life. This traumatic upbringing not only contributed to the development of PTSD but also compelled him to turn to substance abuse as a coping mechanism. These early traumas disrupted his cognitive and emotional development, leading to educational struggles and difficulties in forming healthy relationships.’
24 She goes on to opine that your risk of reoffending is high. It seems clear that your substance abuse history began at least by the age of 12 with consuming alcohol, smoking cannabis, using cocaine. By 13 you were using methamphetamine and by the age of 16 you were using methamphetamine intravenously, which you continued to do for a period of 12 months and then resumed smoking that drug. By the age of 16 you began using GHB and had last used it a week prior to your arrest. You were under the influence of it during your offending.
25 You have had various different forms of employment, and it seems that there is some real prospect of work being organised for you by your sister Jacinta's partner.
26 You left school at seven. I had the benefit of evidence given at the plea hearing by your sister Jacinta, who I found to be a very impressive witness. I accept entirely the evidence that she gave about the upbringing that you had, the abuse - physical and sexual - that was perpetrated upon you and your siblings by your father, and the fact that you and she were forced to leave home and roam the streets at age 13. It seems that you did not get much assistance from Child Protection. All of which supported your counsel's submission that sentencing principles arising from the well-known case of Bugmy[1] apply in your case to reduce your moral culpability for the offending. Mr Cameron on behalf of the prosecution did not seek to persuade me otherwise in his very fair and balanced response to the plea submissions of your counsel.
[1]Bugmy v The Queen [2013] HCA 37
27 There is no doubt that this offending was nasty. It reflects badly upon you, despite those factors which reduce your moral culpability. You have an unenviable criminal history going back to when you were aged 13, mostly in the Children's Court, but your most recent prior court appearance involved the offence of robbery for which you received a 73-day term of imprisonment, which had been the time that you had been in custody. You were dealt with on that occasion also for a contravention of a community correction order. I note that you were on a community correction order at the time that these offences were committed.
28 In addition to relying on the sentencing principles in the case of Bugmy, to which I have referred, your counsel urged me to give you full credit for your plea of guilty indicated at an early stage, and urged me to accept that it had a very significant utilitarian benefit arising as it did during the COVID pandemic. I accept that submission.
29 He also submitted that your plea of guilty demonstrates acceptance of criminal responsibility for your offending conduct. I accept that submission. He noted that the way in which you dealt with the case against you involved the matter coming to this court without your victim having been subjected to the cross-examination which sometimes occurs during the pre-trial stages of a case such as this. He noted that you should be considered to be a youthful offender and that rehabilitation should be regarded as a primary consideration. He urged me to accept that your intellectual disability and mental disorders would result in your time in custody weighing more heavily on you than it would upon a person without those conditions. I accept those submissions also.
30 You have been in custody for 399 days. I am required to sentence you to a term of imprisonment for these offences because these offences are serious and in combination require the court to punish you adequately, to denounce conduct of this kind, to deter others from committing offences of this nature and to deter you from further offending of this kind. I am also required to consider facilitating your rehabilitation. On the face of it, looking at your criminal record, your prospects of rehabilitation do not look particularly good.
31 Your counsel urged me to consider imposing a term of imprisonment which would equate with the time you have spent in custody, or perhaps a bit more, but attaching to that a community correction order. That would have required him to satisfy me that significant mitigating circumstances existed which were compelling and which were exceptional and rare. Despite your counsel's best efforts, I am not satisfied that those circumstances exist and I therefore have no option other than to impose a term of imprisonment with a non-parole period.
32 Your counsel's fall-back submission was that, given your youth and given the evidence from your sister Jacinta during the course of the plea hearing, I was justified in imposing a sentence of imprisonment with a lower than usual non-parole period. I was impressed by your sister's evidence to a point where it seems to me that the haven she offers you as a member of her family provides you with the best opportunity for rehabilitation. She indicates that there may be work waiting for you when you are able to take advantage of that offer of accommodation.
33 I might say I hope that you maintain good relations with your sister, that the offer made by your sister remains in place, and that you are able to take advantage of the family support which will be offered to you as a member of her household. In the circumstances, it is appropriate that I give you every opportunity of taking advantage of that offer and enable you to join that family as soon as you reasonably can after serving the sentence that I intend to impose upon you.
34 There is of course no guarantee that you will get parole at the date or proximate to the date that arises from the orders that I have in mind. But if you continue within the prison system in the way that you have been operating, showing your willingness to participate in programs, showing your desire for rehabilitation, staying clean and impressing those who ultimately will be making reports to the Adult Parole Board, then you give yourself the best chance of obtaining parole.
35 With all those factors in mind, and doing the best I can to balance all of those factors with the Bugmy principles which reduce your moral culpability, there is also the need for me to consider public protection. That arises from the nature of your record, but also from the circumstances of the offending. To the extent that this was, as you claim, a vigilante attack, it is a matter that the court must denounce and deplore. It is not for you or any other citizen to take the law into their own hands, whatever the victim has done.
36 I now intend to impose sentence upon you.
· On Charge 1 of armed robbery you are convicted and sentenced to imprisonment for two years and eight months.
· On Charge 2 of kidnapping you are convicted and sentenced to imprisonment for two years and six months.
· On Charge 3 of making a threat to kill you are convicted and sentenced to imprisonment for 15 months.
· On Charge 4 of causing injury intentionally you are convicted and sentenced to imprisonment for 15 months.
37 The sentence on Charge 1 of two years and eight months is the base sentence. I order that two months of the sentence on Charge 2, two months of the sentence on Charge 3 and two months of the sentence on Charge 4 be served cumulatively upon one another, and upon the sentence of two years and eight months on Charge 1.
38 The total effective sentence is three years and two months' imprisonment.
39 I order a non-parole period of one year and seven months.
40 I declare pre-sentence detention of 399 days as time to be reckoned as served on the sentence that I have imposed and deducted administratively.
41 But for your pleas of guilty I would have sentenced you to imprisonment for five years with a non-parole period of three years and six months.
42 I make the compensation order in the sum of $920 in accordance with the draft we have been provided with.
43 MR GRAY: Thank you, Your Honour.
44 HIS HONOUR: Were there any other matters, counsel?
45 COUNSEL: No, Your Honour.
46 HIS HONOUR: No, thank you. And thank you for your attendance today, Jacinta Leese, and I hope things work out well for you.
47 MS LEESE: That's okay, thank you.
48 HIS HONOUR: Thank you.
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