Director of Public Prosecutions v Lestrange

[2015] VCC 1397

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01153

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN LESTRANGE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2015
DATE OF SENTENCE:	30 September 2015
CASE MAY BE CITED AS:	DPP v Lestrange
MEDIUM NEUTRAL CITATION:	[2015] VCC 1397

REASONS FOR SENTENCE
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Subject:
Catchwords:  Armed Robbery
Legislation Cited:
Cases Cited:
Sentence:  Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms U. Ebsworth
For the Director of Public Prosecutions	Mr J. Manning

HIS HONOUR:

1Kevin Lestrange; you have pleaded guilty to an indictment containing one charge of armed robbery, for which the maximum penalty is 25 years' imprisonment.

2

The offence occurred on 10 October 2011.  At the time of the commission of the offence you were 19 years of age.  You were born on 2 September of 1992.  The circumstances of your offending are contained in a summary of prosecution opening dated 23 September 2015, and an accompanying chronology.  The opening was read to the court by the prosecutor,

Mr Manning, and accepted by your counsel, Ms Ebsworth, as being accurate, and as forming a proper basis upon which I can proceed to pass sentence upon you for the charge.

3It is not necessary that I here repeat what is set out in the prosecution summary, except in a very summary way.  On the day of the offending you were drug affected, having imbibed methylamphetamine.  You entered a clothing store in Brunswick Street, Fitzroy, attended by the victim, who was alone and unarmed.  You were armed with a knife, and after producing the knife and making it clear to the victim that you had it, you demanded money from her and you escaped from the store with about $240, which included $40 taken from the purse of the victim.  You escaped on foot and closed circuit TV surveillance placed you at the scene.

4

Shortly thereafter you went to New South Wales, and this diversion explains, in part, why there has been such a long delay in dealing with this crime.  Whilst in Sydney you were again charged and convicted of armed robbery.  That was in October of 2011, and you were sentenced to a term of imprisonment of three and a half years on 10 August 2012.  You were ordered to serve a minimum of two years before you were eligible for parole, which you did, and you were granted parole in New South Wales on

5 December 2013, then on 28 February 2014 your parole was transferred to Victoria.  Shortly thereafter you were dealt with for two other theft matters which had occurred prior to this matter for which you have been charged and appear before me.  Those other matters were dealt with in the Heidelberg Magistrates' Court on 13 March last year, for which you received a term of imprisonment of five months which was wholly suspended for a period of 12 months.  That suspended sentence has now been served as the operational period has expired.

5On 24 April of 2014 your parole was cancelled and you subsequently served a further 442 days at Port Phillip Prison.  That completed the sentence from the conviction for offending in New South Wales, however you were not interviewed in relation to this matter until 20 February of this year, and you were not charged until April of this year, and there was a committal mention and the matter proceeded by way of straight hand up brief on 6 July 2015.  At that time you were granted bail and you were released the following day.

6That, in very short form, is somewhat of a truncated chronology of events that have occurred since this offending, and which, in my view, materially impact upon the sentence that I can, and should, impose upon you.  Let there be no mistake, however, that your offending is serious.  Although it was not particularly sophisticated, it was, and did, instil fear into the victim, and the community simply will not tolerate this kind of offending.

7Were it not for the chronology that I have just gone through in some detail, one would normally expect the imposition of a term of immediate imprisonment in sentencing for a charge of this kind.  That is because this kind of offending is prevalent, and in sentencing for crimes of this kind the courts will normally be guided by proper application of the principle of general deterrence.  That is to say that the sentence normally imposed would, and hopefully should, send a clear message to those who are minded to offend, as you have, that if they do so they can expect stern punishment.

8However, there are a number of factors here which, in my view, mitigate the sentence.  Firstly; you have pleaded guilty to the charge at an early time - that is to say, soon after being charged.  You are entitled to a reduction in sentence because of that.  There is considerable public benefit in your plea, which has saved the time and cost of a trial, and saved having to bring this victim back into the court system to recount what you did to her, which is approaching five years ago.

9Secondly; there has been considerable delay, not of your making, in the bringing of this matter before the court.  In discussion the learned prosecutor conceded that there was no explanation for the delay, and the principles in a long line of cases must be applied.  That is to say, in summary form, that justice delayed is justice denied.  In passing sentence in this matter I have taken the delay into account.

10Thirdly; you committed this offending when, at law, you were a young offender.  You are now what can, I think, properly be described as a youthful offender, and in passing sentence I must take into account your prospects for rehabilitation.

11I will come to that again in a moment, but I think it is fair to say that your time in prison in New South Wales, and the delay and the change in circumstances in your life - namely the introduction into your life of your partner Ms Brown and her child, and the child you have had with her - seems to have had an impressive influence upon you, and you have managed to remain out of trouble now for some period of time.  I hope that that will continue.  You have, and continue to have, the support of your mother and her partner.  That is good because the court can have some reliance upon the fact that you will have some support going forward.

12Your circumstances and background are also, in total, a mitigating factor.  Your counsel has helpfully submitted a very detailed outline of your background history, which I do not think is necessary for me to repeat in detail save to say that since you were a young child you have had a number of unfortunate circumstances bestowed upon you not of your making.  Your father was murdered and you have not known him.  You also suffer - and have been diagnosed at an early age of five or six years - with attention deficit hyperactivity disorder.

13There has been Department of Human Services intervention since early in your childhood due to allegations of physical abuse from your older brother.  You have attended a number of primary schools and have been suspended for behavioural issues.  You have also attended a number of secondary schools, but in summary, your schooling ended at Year 9, when you were again suspended and ultimately expelled for behavioural issues.  You have been abusing alcohol and cannabis from an early age, and in your teens you turned, unfortunately, to use of methylamphetamine.  That kind of history is not unknown in the court system, and in summary form can regrettably be described, I think, as unfortunate.

14You have a number of prior convictions, mostly for dishonesty matters in the Children's Court.  There are convictions for some acts of violence but your adult criminal history is somewhat limited to this matter, and the matters that I referred to earlier.

15You live in a relationship with your partner, Ms Brown.  There are two children; her son and your biological child, now ten months old.  You have been attending drug and alcohol counselling with Mr Fitzgerald from Stepping Up at Hastings.

16In passing sentence I have taken all of these matters into account, but I must also take into account and apply the principle of totality.  That principle may, I think in summary form, be summarised as 'when is enough enough?'  And by that I mean when is the sentence imposed in New South Wales, and what has happened to you since, said to be enough?

17In my view, having fully served the New South Wales sentence both in that state and in Victoria, and having regard to the delay and the way in which you have taken some steps, albeit tentative, to get your life in order during the course of the delay, in my view all of these matters dictate that I should not impose a disposition resulting in your immediate custody again, and for these reasons I have been persuaded - powerfully, if I may say so, by Ms Ebsworth - that a proper disposition in this case is that of a community corrections order, and I have had you assessed for the making of such an order.

18

I should also add that I have been assisted by a number of reports that were written about you, which I will not detail, but which were referred to in discussion; principally the lengthy report from Dr Rachel O'Meara, a clinical neuropsychologist, dated 1 September 2015, and the report from

Mr Fitzgerald from Stepping Up.  There are also a number of other certificates which prove that you have taken the right steps in order to do something about rehabilitating yourself.

19When I had you assessed for a community corrections order the assessment tool used by the assessor shows that you fall within a high risk of reoffending.  That may be so, and I take the view that your prospects for rehabilitation must remain guarded, but I am mindful of the fact that you have taken, as I say, albeit tentative steps to get your life in order.  For these reasons I have decided that a community corrections order is appropriate.  I have been advised by the assessor that you have agreed to the making of such an order.

20In making a community corrections order the assessor has recommended that I impose as part of the order an order that you undergo community work.  I have given that matter some consideration and I have decided that I should not impose such a condition in this case.  I do so for two principal reasons - at least I should say, rather than being ambiguous about it - I have not imposed the condition recommended in this case, firstly, because such a condition is normally regarded as a punishment element of the order, and I think you have undergone sufficient punishment for your crimes, and secondly, such an order would probably bring you into contact with persons whom, in my view, it would be in your interest, but more importantly in the community's interest, that you have nothing to do with.

21For those reasons I will not impose that condition, however I impose on the charge of armed robbery a community corrections order with conviction.  The order will be for a period of two years, and there will be conditions that you undergo supervision and treatment and rehabilitation for drugs and alcohol, mental health and programs to reduce your offending.

22For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your plea of guilty to the charge, and had I found myself having to sentence you after conviction at trial, I would have imposed a term of imprisonment of two years with a non-parole period of 12 months.

23I have been asked to make a disposal order which relates to the material seized by the police subsequent to the robbery.  That order being unopposed, I will sign that order.  Are there any other consequential orders?

24MR MANNING:  No, Your Honour.

25MS EBSWORTH:  No, Your Honour.

26HIS HONOUR:  Any matters arising out of that?

27MR MANNING:  No, Your Honour.

28MS EBSWORTH:  No, Your Honour.

29

HIS HONOUR:  Very well.  Just come out of the dock if you would, please,

Mr Lestrange?  Come up to the Bar table here, if you would?

30MS EBSWORTH:  Your Honour, Mr Lestrange is just taking a moment to read the order.

31HIS HONOUR:  Yes, certainly.

32ASSOCIATE:  Mr Lestrange, do you confirm that this is your signature?

33OFFENDER:  Yes.

34ASSOCIATE:  Thank you.

35HIS HONOUR:  Now, Mr Lestrange, do you understand that by me making this order and you agreeing to it that if you commit any offence for which you could be sentenced to a term of imprisonment during the next two years, whilst this order is on foot, you will come back before me.  Do you understand?

36OFFENDER:  Yep.

37HIS HONOUR:  And when you come back in that circumstance unless there are extraordinary circumstances you will go back to gaol.  Do you understand?

38OFFENDER:  Yes.

39HIS HONOUR:  I hope so.  So I do not want to see you back here, that is the shorthand way of saying it.  Do you understand?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  So having said that, upon the rising of the court you are free to leave.

42MS EBSWORTH:  As the court pleases.

43MR MANNING:  As the court pleases.

44HIS HONOUR:  Would you adjourn the court, please, till tomorrow morning.

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