Director of Public Prosecutions v Leigh Dorling
[2013] VCC 1118
•24 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH DORLING |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2013 | |
DATE OF SENTENCE: | 24 July 2013 | |
CASE MAY BE CITED AS: | DPP v. LEIGH DORLING | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1118 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Schwartz | Office of Director for Public Prosecutions |
| For the Accused | Mr J Sullivan |
HER HONOUR:
1 Leigh Dorling, you have pleaded guilty to two charges of theft, Charges 1 and 2; one charge of attempted armed robbery, Charge 3; and one charge of destroying or damaging property, Charge 4.
2 The maximum penalty for theft and destroying or damaging property is 10 years' imprisonment. The maximum penalty for attempted armed robbery is 20 years' imprisonment. In respect of Charge 2, which involves the theft of a motor vehicle, your driver’s licence must be suspended for a period.
3 The prosecution sought orders for the taking of a forensic sample from you. The making of that order was not opposed. The prosecution also sought an order for the disposal of certain items and the making of that order was consented to.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit "A". At about 4.00 p.m. on 3 December 2012 you and an ex-girlfriend were in a shopping centre in Traralgon. You discussed stealing a car from the underground car park. You went to a supermarket and stole a packet of three pairs of scissors. That theft is the subject matter of Charge 1. You went to the car park and used a pair of scissors to force a lock on the car. You got in the car and used scissors to force the ignition. You then went to collect your friend. The theft of the car is the subject matter of Charge 2.
5 You then went and parked outside a shop in Traralgon. Your friend was lying on the back seat. You went into the shop carrying a pair of scissors. A staff member came to the service area. You raised the scissors in a stabbing position and pointed them at the staff member. You looked at her and said, "Open the fucking till." She was in fear and ran to the back of the shop. She was very hysterical and upset.
6 The store manager grabbed a broom and ran to the customer service area with another staff member. You ran out and fled in the car. That incident is the subject matter of Charge 3.
7 The next day you removed a Sony car stereo and a JCV car stereo from the consul of the car, causing damage to the car. That is the subject matter of Charge 4.
8 You were arrested on the 5 December 2012 and made no comment when you were interviewed by police. Your ex-girlfriend was also arrested and made full admissions. She later pleaded guilty to one charge of theft of motor vehicle and was sentenced to an adjourned undertaking without conviction.
9 A victim impact statement was made by the staff member who was in the shop at the time. That victim impact statement was declared on the 13 March 2013. In her victim impact statement the staff member describes her feelings of fear and lack of safety outside her own home which persist until the time she made her statement in March this year. She describes her discomfort around people in groups or with strangers. She says she was too afraid or scared to return to work. She says she has trouble sleeping and suffers from anxiety and stress. She has also felt angry that this offending occurred. She says that she is less trusting of other people than she was. I note that the staff member says that she has been engaged in counselling to assist her with these matters.
10 I have taken into account your personal circumstances in sentencing you. I derive those circumstances from what was said on your behalf at the plea hearing and what was said in the report of Mr Geoffrey Cummins, dated 6 May 2013, which was tendered as Exhibit 1, and the report of Mr David Bruce, dated the 1 May 2011, which was tendered as Exhibit 2.
11 You are now 25 years old. You had a very disrupted and difficult childhood. You last saw your mother when you were about five when you were placed in care. You lived in placements in the Gippsland area. When you were 12 or 13 your father tried to obtain custody of you and you lived with him for the next two to two half years near Moe. You say your father started bashing you then you left home. You moved around and then moved in with your maternal aunt when you were about 14 and a half. At that time you were working. She had been supportive of you since you had left the care of your mother. You left her home after several months and have said that around that time your father got into a relationship with your aunt. You say your father sexually abused her two young daughters and you feel very bad about that.
12 You left school in Year 9. You worked at various jobs until you were about 20. Since then you have been on unemployment benefits and on a carer's pension. You lived with a man, as his carer, for three and a half to four years. You have never had a driver's licence. You have had some relationships with young women but are not currently in a relationship.
13 You have used various illegal drugs. You were introduced to heroin at around 14 and have had various periods of addiction to heroin or other opiates.
14 You have admitted an extensive prior criminal history. Your many court appearances mainly involve driving, dishonesty and drug related offending. You had multiple appearances in the Children's Court but no sentences which involved periods of detention. You did appear in the Children's Court in respect of charges of theft of motor vehicle, burglary and criminal damage. You have had multiple appearances in the Magistrates’ Court. On 15 September 2008 in the La Trobe Valley Magistrates’ Court you were sentenced on charges including burglary and theft to nine months' imprisonment, with three months suspended. At the same court, on the 15 May 2007, a suspended sentence of five months was imposed for offences, including theft of motor vehicle, after you had breached a community based order. On the 31 October 2006, at the La Trobe Valley Magistrates’ Court, you were sentenced in relation to theft of motor vehicle and intentionally damaging property charges. You were sentenced to nine months' imprisonment. That sentence was suspended except for two days.
15 When you were arrested on the charges for which I am sentencing you there was an outstanding warrant in respect of a sentence of five months' imprisonment imposed at Sale Magistrates’ Court on 15 August 2011. You had appealed that sentence but did not appear on the appeal date. You have now served that five months. Another sentence of 70 days was restored and served concurrently with the five months sentence that you served.
16 You have spent 79 days up to and including 23 July 2013 in pre-sentence detention, for the matters on which I am sentencing you.
17 In his report Mr Cummins says that on what you had said to him, you committed the offences in order to obtain money to purchase heroin or some opiate based medication. Mr Cummins says that you hoped that the court would sentence you to a sentence involving a Community Correction Order, in which case you would be able to undergo a residential drug rehabilitation program. Mr Cummins says you have never undergone any such program and wished to engage in that type of program.
18 It is Mr Cummins' opinion that at the time of the offending you were suffering from an opioid dependence and cannabis dependence as well as a dysthymic disorder. Mr Cummins says you have suffered from the dysthymic disorder from an early age. That disorder involves depression one level of severity below that of a major depressive disorder. Mr Cummins says you have never received treatment for depression and, in his opinion, you should be receiving ongoing psychotherapy and be trialled on an anti-depressant. It is Mr Cummins' opinion that you do not have a general anger management problem but have difficulty with your feelings arising from various matters which occurred in your childhood.
19 Mr Cummins says -
20 "Even though he is pleading guilty to the serious charge of attempted armed robbery it is my opinion his problems lie primarily in the mental health domain. In my opinion, at the time of the offending he was suffering an undiagnosed and therefore untreated depressive disorder, in the form of a dysthymic disorder. In my opinion this disorder, coupled with his ongoing drug use (which in significant part is reflective of self-medication on his behalf) would imply at the time of offending he would have been experiencing compromised perception, judgment and reasoning."
21 It is Mr Cummins' opinion that any gaol sentence would be more onerous for you than for someone who does not have your mental health problems. In addition, he believes that your prospects for rehabilitation would be reduced by time spent in custody. It is Mr Cummins' opinion that a residential drug rehabilitation program is the most appropriate and necessary course for you to take. Mr Cummins assessed your intelligence as being below average intelligence, most probably within the borderline range IQ of 70-79. He also described you as being quite immature.
22 In his report Mr Cummins refers to the report of Mr Bruce. Mr Bruce administered an intelligence test and assessed your IQ as being between 80 and 90. Mr Bruce says "Reasoning will not be a strong characteristic but he is able fully to understand normal daily living requirements." It is his opinion that with drug rehabilitation and further education, including to read competently, you could "acquire a more reliable occupation".
23 For the purpose of sentencing you I accept Mr Cummins' diagnoses in relation to your mental health state and Mr Bruce's assessment of your intelligence as his conclusion was based on testing.
24 Your counsel submitted that I should take into account the circumstances of your offending and, in particular, that the initial theft of scissors related to a potential car theft. At that stage you had no intention to commit an armed robbery. Your counsel said that you could not get or borrow money for drugs and you decided to steal money. Counsel asked me to take into account that you did not use any disguises and that your offending was very unsophisticated with, he said, little chance of avoiding detection.
25 Your counsel also relied on your plea of guilty which was made at the first reasonable opportunity. There was apparently some negotiation in respect of an extra charge relating to the theft of the radio from the motor vehicle. The matter was resolved with you ultimately being indicted on the current charges.
26 Your counsel said that you have not used drugs in custody and that you wished to remain drug free and engage in rehabilitation. You have done a day course on relapse prevention, in custody, as evidenced by certificate tendered as Exhibit 3. Your counsel said that you found that useful and that you hoped to enter into a residential rehabilitation program.
27 Your counsel also relied on Mr Cummins' opinion that a gaol sentence would be more difficult for you because of your mental health difficulties and that your prospects of rehabilitation would be reduced the longer you spend in prison.
28 Your counsel submitted that you are a relatively young person with mental health problems and with limited experience of gaol. He suggested that your prospects for rehabilitation would be improved by a sentence which involved a short further term of imprisonment followed by a Community Correction Order. This was put in the context that you had already served seven months' imprisonment since your arrest in December 2012 and the legislation would allow me to impose a further three months to be followed by a Community Correction Order. Such a course would be preferable to a sentence of imprisonment with a non-parole period, according to your counsel. The conditions of a Community Correction Order could include supervision by the court.
29 The prosecutor submitted that, in view of your prior criminal history and the repeated nature of your offending, specific deterrence would be a very real issue in your sentence. The prosecutor also submitted that I should take into account the harm caused to the victim in the attempted armed robbery.
30 The prosecutor's instructions were that an appropriate sentence would be in the range of a head sentence of three to four and a half years with a non-parole period of two to three years. I understood that some, but not all, of the psychological material had been received when those instructions were given.
31 Mr Dorling, attempted armed robbery is a serious offence. You used a weapon in an attempt to frighten someone into giving you money. You caused harm to the person in a shop who was in a fairly vulnerable position. She was going about her business with no expectation of anything like this happening. In her victim impact statement the victim has explained the effect on her. Your offending continues to trouble her. It is to be hoped with counselling and time she will be able to put your offending behind her and gain confidence. Your offending caused her harm but this type of offending also causes harm to the community generally. When the community hears about this type of offending it diminishes their trust in other people and their feeling of safety.
32 I accept that this offending was less serious than some situations of attempted armed robbery because you were not disguised. You had scissors, rather than a knife or gun, and fled when challenged.
33 In respect of the theft of motor vehicle, I have no doubt you caused distress and inconvenience to the owner of that vehicle compounded by the damage you caused albeit of a relatively minor nature.
34 You are a relatively young person with a very difficult background, limited intelligence and mental health issues. I accept that your sentence ought to be moderated to a degree to reflect the difficulties you faced in custody because of your depressive disorder. I have taken into account that you have had many moves in custody apparently due to difficulties with other prisoners. It is not said that those difficulties were directly related to your depressive disorder.
35 I have also taken into account that you were brought to court on two days when you were not required due to a misunderstanding apparently by the authorities. I have taken into account that you have been serving a sentence and therefore have lost an opportunity for any concurrency between that sentence and the sentence that I will impose.
36 You are entitled to a significant discount for your plea of guilty. That plea has saved the cost, inconvenience and trauma of a trial. I accept that is an expression of your remorse. I accept you genuinely regret your offending and want to try to stop using illegal drugs.
37 Your rehabilitation is appropriately a significant sentencing consideration, giving your age and background. At present I assessed your prospects as moderate at best. In my view the structure of the sentence contended for by your counsel in view of the seriousness of your offending would place too much weight on your rehabilitation at the expense of other sentencing purposes of denunciation, just punishment, general deterrence and specific deterrence. General deterrence is an important factor in this sentence. Other people must understand that if they try to commit armed robberies, then they will be sent to gaol. You have been assessed as suitable for a community correction order but I do not consider that a short sentence of imprisonment, followed by a community correction order would adequately meet the sentencing considerations to which I have referred.
38 I have taken into account in the sentence I am imposing the principles of totality and proportionality. I have also taken into account the matters which I have accepted ought operate in mitigation of sentence.
39 I have also taken into account in reduction of the time of the length of the sentence that you have been in custody since December 2012 serving other sentences.
40 I have also set a shorter than otherwise non-parole period in the hope that you continue to make positive efforts in custody so that you can be released on parole if the Parole Board so decides. It is to be hoped that if you are released on parole you will be able to receive counselling in relation to your depressive disorder and family background and engage in a residential rehabilitation program.
41 Could you stand up, please, Mr Dorling? On Charge 1, of theft, you are convicted and sentenced to 14 days' imprisonment. On Charge 2, of theft, you are convicted and sentenced to six months' imprisonment. In respect of Charge 2 your license is cancelled, you are disqualified from driving in the State of Victoria, for a period of six months from today.
42 In respect of Charge 3, attempted armed robbery, you are convicted and sentenced to 18 months' imprisonment. In respect of Charge 4, destroying or damaging property, you are convicted and sentenced to 14 days' imprisonment.
43 All these sentences are to be served concurrently. The total effective sentence is 18 months' imprisonment. I fix seven months as the period that you are required to serve before being eligible for release on parole. I declare that you have served 79 days of this sentence by way of pre-sentence detention to be deducted administratively.
44 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to a term of imprisonment of 27 months with a non-parole period of 16 months.
45 I have made an order for the taking of a forensic sample from you. I have made that order because of the seriousness of the circumstances of your offending, your prior convictions, and that the order is not opposed. I am required to tell you, Mr Dorling, that you must cooperate with the authorities. The authorities, if they come to take a sample, will take it, as I understand it, by way of a saliva swab from your mouth. If you do not cooperate they are authorised to use reasonable force to take a sample and may ultimately take a blood sample. Now, I am sure that you will cooperate with them if they come to take a sample.
46 I have made the order for the disposal of certain items that were sought.
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