Director of Public Prosecutions v Lister
[2013] VCC 1043
•8 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01340
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN LISTER |
---
JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May, 25 June, 1 July 2013 | |
DATE OF SENTENCE: | 8 July 2013 | |
CASE MAY BE CITED AS: | DPP v Lister | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1043 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J C J McWilliams | OPP |
| For the Accused | Ms A Cannon | Greg Thomas |
HIS HONOUR:
1 Darren Lister, your case first came before me as a trial on 30 May this year. Until 28 May 2013, the relevant serious indictable offence referrable to your offending was said to be intentionally causing injury. On 28 May, the prosecution altered their position to allege the offence of common law assault. When the matter came before me it was stood down for you to consider your position and, upon arraignment, you pleaded guilty to one charge of assist offender contrary to s.325 of the Crimes Act 1958, as well as three related summary offences being:
· on 23 March 2011 – driving whilst your authorisation was suspended (Charge 2);
· on 24 March 2011 – driving whilst your authorisation was suspended (Charge 3); and
· on 23 March 2011 – behaving in an offensive manner, namely urinating in the street (Charge 4).
2 Your matter was adjourned for plea to 25 June 2013.
3 At the end of the plea proceedings, on 25 June, it became apparent that the related summary offence (Charge 2) may not have been properly laid against you, in that your authorisation to drive may not have been suspended at the relevant time. The proceedings were adjourned to 1 July 2013 for the Crown to ascertain the true position in respect to your authority to drive.
4 On 1 July I was informed that your authorisation to drive was not suspended until the evening of 23 March 2011 after the event the subject of the indictable offence. Accordingly, you were granted leave to withdraw your plea to the related summary offence, Charge 2, and that charge was struck out.
5 Accordingly, you fall to be sentenced on:
· assisting an offender contrary to s.325 of the Crimes Act 1958;
· on 24 March 2011 driving whilst your authorisation was suspended (related summary offence Charge 3); and
· on 23 March 2011 behaving in an offensive manner (related summary offence Charge 4).
6 The maximum penalty for the indictable offence is two and a half years’ imprisonment; for the offence of driving whilst your authorisation was suspended, it is two years’ imprisonment or 240 penalty units or both; for the offence of offensive behaviour, the maximum penalty is three months’ imprisonment or 15 penalty units.
7 Whilst you committed these offences in March 2011, you were not charged until February 2012 after your co-offender had been sentenced. You were committed for trial on 30 July 2012 after a contested committal hearing.
8 The facts that support the charge on the indictment are set out in the summary of facts that was read aloud in court and tendered as Exhibit A on the plea. I will not repeat them, save to say that knowing that your co-offender, Robert Wilson, had assaulted his victim, you beckoned Wilson back to your car and drove him away from the scene of the assault. You had driven Wilson to the scene of the assault so that he could get his daily dose of methadone from a nearby chemist. Whilst waiting for Wilson to get his methadone, you got out of your car and urinated in the plain view of a number of witnesses (related summary offence Charge 4). The next day, 24 March 2011, you again drove Wilson to the chemist in Carlton where you were both arrested by police. The previous evening, your authorisation to drive a motorcar had been suspended pursuant to the provisions of s.51 of the Road Safety Act 1986. When interviewed under caution you denied any knowledge of the assault.
9 Your co-offender, Wilson, pleaded guilty to one count of intentionally causing serious injury to the victim. Wilson stabbed the victim with a screwdriver-type weapon causing a penetrating left facial injury with a fracture to the left mandible. The Crown opening, Wilson’s criminal history, and the sentencing remarks of the learned sentencing judge, His Honour Judge Shelton, were tendered on the plea as Exhibit C. Exhibit B was the victim impact statement which sets out the injuries suffered by the victim and the consequences of the attack upon him. You, of course, are not to be sentenced for the principal’s conduct and fall to be sentenced for driving Wilson away from the scene knowing only that he had assaulted his victim.
10 You have a lengthy prior criminal history, spanning 13 or so years. It commenced in December 1998, when you were nearly 18 years old, and it continued until October 2012, when you were aged 31 years. You have appeared before the courts on 12 other occasions and have findings of guilt and prior convictions for driving offences, and offences of dishonesty and violence. You have received community-based dispositions, many of which you have breached. You have prior convictions for unlicensed driving, driving in a manner dangerous, driving whilst disqualified, driving in breach of a permit, and driving whilst your authorisation was suspended. For the last mentioned offence you were sentenced to three months imprisonment that was wholly suspended for 12 months. You committed the instant offences whilst undergoing a suspended sentence for recklessly causing injury, assault with a weapon, and breaching a previous suspended sentence for theft.
11 I was informed by your counsel, Ms Cannon, that you are currently serving a Community Corrections Order for attempted theft of a motor vehicle and going equipped to steal. These offences were committed by you in October 2012 whilst you were on bail for the offences for which you now fall to be sentenced.
12 The Community Corrections Order was imposed by the Heidelberg Magistrates’ Court on 6 February 2013. Exhibit 2 on the plea was a report from Corrections Victoria concerning your progress on that Community Corrections Order. As at 20 June this year you had done only 10 hours of the 100 hours of unpaid community work that is a condition of the order. You have been referred to psychologist, Dr Janev, and to a medical practitioner, Dr Chan. The report concludes:
“Although, Mr Lister has accrued one unacceptable absence, he has maintained positive engagement with supervision, has recently re-engaged with unpaid community work and has maintained positive compliance with the medical and mental health conditions of this order.
In light of the above, he is a suitable candidate for a further order.”
13 You commenced to see Dr Janev prior to the Community Corrections Order of February this year. A report from Dr Janev, dated 29 December 2012, was tendered as Exhibit 1 on the plea whilst a follow-up report, dated 20 June 2013, was tendered as Exhibit 2. You have had six counselling sessions with Dr Janev. The general tenor of the report of 20 June 2013 is that you are progressing well. Dr Janev opines that:
“I have no apprehensions about his risk of recidivism at this time. I also believe that he is not a major risk to the community. In fact, I would be extremely surprised if he were to re-offend again in future given the consistency as demonstrated in treatment and achievements made thus far.”
14 I regard Dr Janev’s opinion as naïve. You have a lengthy prior criminal history, you committed the instant offences whilst on a suspended sentence and the offences for which you were sentenced to a Community Corrections Order in February this year were committed whilst you were on bail for the instant offences.
15 Despite the many provisional diagnoses made by Dr Janev in her report of 29 December 2012, your counsel did not rely on any of the six propositions set out R v Verdins (2007) 16 VR 269. Rather, your counsel concentrated on your progress whilst under the care of Dr Janev and sought a disposition that would enhance your prospects for rehabilitation.
16 During the plea your counsel submitted, both orally and in written form, that in accordance with R v Liang & Li (1995) 82 ACrimR 39 at 44 that:
“ …it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.”
And that therefore I should have regard to the penalty for the lesser offence of common assault under s.23 of the Summary Offence Act 1996, which has a maximum penalty of three months’ imprisonment or 15 penalty units.
17 You are not charged as a principal but as an accessory after the fact. Your liability only arises if the principal offence is a serious indictable one. By your plea you acknowledge that knowing or believing Robert Wilson to have committed a serious indictable offence, in this case assault at common law, you without lawful excuse did an act with the purposes of impeding the apprehension, prosecution, conviction or punishment of Robert Wilson. The maximum penalty for this offence is two and a half years’ imprisonment (see s.325 4(b)(ii)). In my view there is no appropriate “less punitive offence” and, accordingly, in my view that submission is misconceived.
18 As to the general application of Liang & Li, this was recently dealt with by the High Court in Elias v R; Issa v R [2013] HCA 31 where at [37] the Court concluded:
“There is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but has not been, convicted.”
19 You grew up in Reservoir. Your parents were hardworking and had no involvement with the criminal law. It was said that the area in Reservoir where you spent your formative years was a nursery ground for criminals. However, when you were aged 10 years your family moved away from that immediate area and you changed schools. Your older brother and sister have been in trouble with the law and it was said that you idolised your older brother and that you kept your early childhood friends, and that this resulted in you being exposed to crime at an early age and to cannabis at the age of nine. Since that time cannabis has been your drug of choice, although you have also abused ecstasy, LSD and methylamphetamine. You left school at Year 9 and have had sporadic employment since that time.
20 You have had one long term relationship from 1999 to 2006 and a child, Kloe, aged nine, is a product of that relationship. You are currently residing with your mother. A letter from your mother was tendered as Exhibit 3 on the plea and she writes as to the changes that you have made in your life. Your youngest sister, Kim, gave evidence that since your release from prison in August last year you have reduced your alcohol consumption and that you have a good relationship with Kloe, to whom you have access every second weekend.
21 On 4 October 2011 you had a wholly suspended sentence of imprisonment, which was imposed on 5 November 2010, restored as a result of breach. The order of 4 October 2011 was appealed but the appeal was abandoned on 25 January 2012 (see Exhibit D on the plea). You went into custody on 25 January 2012 and remained there until 17 August 2012 serving sentences imposed on 4 October 2011 and 18 April 2012, as well as time “cutting out” fines. Less than two months after your release, you committed the offences that resulted in the Community Corrections Order imposed in February this year. You have spent no time by way of pre-sentence detention for the instant offences.
22 The instant offending is entirely consistent with your life up until October of 2012. You assisted Robert Wilson in avoiding being apprehended and prosecuted for his unprovoked assault on an innocent victim. Whilst waiting for Wilson to obtain his methadone, you urinated in the street in plain view of a number of witnesses. Within hours of being suspended from driving, you drove Wilson back to the scene of his and your earlier offending. At that time in your life you had no respect for the law. In fact you thumbed your nose at the laws that regulate the society in which you live. Whilst the crimes that you have committed are not as serious many others in the criminal calendar, your criminality is of a high order.
23 You have pleaded guilty and must be given benefit for that plea. It is a late plea and runs contrary to the contents of your record of interview and what you told Dr Janev (see Exhibit 1, paragraph 3.1.). I see little remorse in your plea, however, there are utilitarian benefits that flow from it and you are therefore entitled to a reduction of your sentence.
24 There was some delay in you being charged, and that too must be factored into any sentence that I impose, as too must the time between January and August 2012 that you spent in custody.
25 You committed the instant offences whilst on a suspended sentence, and that is an aggravating feature of your offending. You need to be specifically deterred from further offending, and you are an appropriate vehicle for the application of general deterrence, which in my view has particular relevance to the offences of assist offender and driving whilst your licence was suspended.
26 Your rehabilitation must be fostered, and you have made some steps in that process, but I do not share Dr Janev’s opinion as to your prospects for rehabilitation, which I regard as doubtful.
27 Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
28 In respect to the offence of assist offender I sentence you to a Community Corrections Order for two and a half years, with a special condition that you perform 150 hours’ unpaid community work.
29 In respect to the related summary offence Charge 3 I sentence you to three months’ imprisonment.
30 In respect to the related summary offence Charge 4 I convict and fine you $250.
31 That means that you will serve an immediate term of imprisonment of three months, and that upon release you will commence your Community Corrections Order.
32 I declare pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to 9 months’ imprisonment.
33 I need to explain something to you. The provisions of the legislation are this: that when you are released from the term of imprisonment of three months your Community Corrections Order commences and your obligations to report under that Community Corrections Order commence on that day and you have two days in which to report. There is an ancillary order, as I understand it.
34 MR McWILLIAMS: Forfeiture, if it please Your Honour.
35 HIS HONOUR: That's so. You may sit down please, Mr Lister. I'll hand down those disposal orders. What's going to take place now Mr Lister is this: the Community Corrections Order that I've imposed means that I need to sign that order and you too need to sign it and that is currently being produced.
(Order signed and acknowledged.)
36 HIS HONOUR: Yes, thank you. Remove the prisoner please.
- - -
0
2
0