Director of Public Prosecutions v Lovell
[2013] VCC 1021
•28 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-00532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONOR LOVELL |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2013 | |
DATE OF SENTENCE: | 28 June 2013 | |
CASE MAY BE CITED AS: | DPP v Lovell | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1021 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Plea – Sentence
Catchwords: Criminal damage – cause injury intentionally – armed robbery – prior criminal convictions – young offender – prospects of rehabilitation – consumption of “ice”
Legislation Cited: Crimes Act 1958 (Vic), s18, s197 – Sentencing Act 1989 (Vic), s18, s35
Sentence: Total effective sentence of 2 years’ detention in a youth justice centre.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Zammit | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J Cass | Victoria Legal Aid |
HIS HONOUR:
1 As to the report tendered today, insofar as your suitability for a youth justice centre order, I want to repeat my thanks to Mr Cardiff for the preparation of that report in such a short time and for the standard of that report; it will be tendered as Exhibit B. In addition, to be tendered as Exhibit 2 and to be held on the Court record, should you ever return, is your letter dated 28 June 2013. I hope that some judge, or some future court, does not have to look back and say that you did not live up to those comments.
2 On 21 June of this year, you pleaded guilty to three charges in Indictment No. C13616228. The first of those crimes occurred on 13 October 2012 when you caused criminal damage to a bus stop. Essentially, you were involved in a tagging exercise, an exercise that seems again to beset the community, almost as much as the “ice” epidemic of which you are also a part. I do not know whether there is any correlation, but perhaps I should not say any more.
3 The charge of criminal damage is an offence under s197 of the Crimes Act for which the maximum penalty is one of ten years. That, of course, pales into insignificance as to the major offence that you pleaded to, being that, on 29 December of last year, you committed an armed robbery. That armed robbery was committed in the public space upon a person you knew. You used a golf club and stole from him an Apple iPad.
4 You were, remarkably, at the time of the first offence, aged only 18, and 19 at the next offence. You also, as a result of the attack upon Mr Larson, caused him injury with the golf club, an offence for which you have also pleaded guilty, that is, cause injury intentionally, which, pursuant to s18 of the Crimes Act has a maximum sentence of ten years. The two offences, Counts 1 and 2, pale into insignificance insofar as the penalty imposed by Parliament for armed robbery, being one of 25 years. You have catapulted yourself into almost the highest level of crime available under the Crimes Act in Victoria, and here you are only aged 19.
5 In the circumstances of this case, although one fully understands the injury suffered, and the trauma that the victim would have gone through, there was no victim impact statement tendered.
6 The difficulty with you, of course, in comprehending what to do with you is that you have a significant number of priors. You have two priors in adult court: in June 2012, you were placed on a Community Corrections Order for a period of nine months for a number of offences, including possessing a controlled weapon and being in the possession of proceeds of crime and drug offences; in March 2012, you had a theft and criminal damage when you were given a youth supervision order. You had a considerable history in the Children's Court with sentences going back through 2011, 2010 and November 2009.
7 As was put to you in cross-examination by the learned prosecutor, you have had a number of opportunities provided by the Court system to change your ways; at no time have you taken the opportunity.
8 Given the serious nature of this matter, despite your age, you have spent a period of 179 days in an adult remand centre. The concerns of the Court are such that despite an application being made to this Court, the Chief Judge of this Court refused you bail, because of such seriousness.
9 The summary tendered, agreed to by both counsel, became Exhibit A, and sets out the circumstances. The serious nature of the crimes indicates, as you have said, you, at the time were living in a haze of “ice” addiction. I seem to have been living in the haze of “ice” addiction over the last three weeks. Every day, almost every violent offence I have had to sentence someone for was associated with “ice” consumption.
10 As I repeat, you were, at the time of this offending, between the years of 18 and 19. The tagging probably does not need any more comment than I have already indicated. The damage was a sum of $308 and as I understand, I have signed appropriate orders in that regard.
11 The armed robbery, which took place, as I say, on 29 December, involved James Larson, who was unfortunate enough to be walking home from purchasing some goods at the 7-Eleven store in Canterbury Road, when he was assailed by you. You punched him to the left side of the face and then hit him to the ear with the end of the golf club. Despite him trying to get away from you, you managed to grab his iPad, hence the armed robbery, and, of course, the assaults on him make up the basis of the third count.
12 The injuries sustained were a 1.5 laceration over his left cheek, such that required three stitches, and he subsequently attended at the Blackburn Clinic where he was subject to an observation, and bruising had developed. There is a report in the depositions at page 24 of Dr Harrison as to such injuries. The victim suffered thereafter from some agitation and concern for his safety, which seems to me totally understandable in the circumstances, and also from increased insomnia.
13 You were apprehended. You were not cooperative. It may well be that, as you have said today, on oath, you really did not have too much memory of what went on, although you did deny these crimes. You admitted that at the time you were on drugs, not only apparently “ice”, but Xanax as well. Fortunately, with appropriate advice, your plea has been entered at the first opportunity.
14 Insofar as the plea of your counsel, I was firstly referred to Exhibit 1, the psychological report of Ms Warren. That refers to your history, to the circumstances insofar as your father, and his chronic illness, and difficulties and ultimate death and its impact upon you. It also refers to the problems that your mother has had as a result of your father’s death. As I said, you should be ashamed of yourself that not only has she had to cope with your father’s death but she has had to put up with your behaviour.
15 You are the youngest of three siblings, both of whom function well in life, and as your mother said, are hoping that you turn around your life. You obviously are a person who has some intellectual ability. Unfortunately you did not take the opportunity for education in your younger age. You say now that it is your intent. I hope that is so. The greatest opportunity you have is education, especially with the talent that you have got, and an appropriate TAFE course, with a bit of gumption, may well change your life totally.
16 Of course, as you know, unless you, when you come out, change and get off the drugs, then there is no chance for you and you will simply come back to Court. Indeed, as you have already found, and what may dismay the public, but does not dismay this Court, is that you have already been able to consume drugs, albeit on remand, in adult prison. Unfortunately there is no sector of our society that cannot obtain drugs if they want it, even in prison. That will obviously apply in juvenile justice as well. As has been pointed out, should you breach again, then there will be no alternative but for you to go back to adult prison.
17 The report of Ms Warren was guarded about your capacity to remain drug free. That seems a pretty big challenge as far as you are concerned. She said this:
“He estimated his chances of remaining drug free post release about 50/50. This is probably somewhere between an optimistic and realistic estimate and contrasts with many 100 per cent confident youth who are unrealistic and think a period of gaol based abstinence will easily translate into a community based absence.”
18 She went on to say that:
“If he is obliged to serve a significant further period of imprisonment it is respectfully recommended that this be in youth custody where there is an overall atmosphere of more hope for the future.”
19 Your counsel requested, on the last occasion, that I obtain a pre-sentence report in regard to your future. You have now spent 179 days in adult custody. Having gone into the big league, that is exactly where the Chief Judge said you should be. However, the Courts are particularly keen to ensure that rehabilitation can be effected, if at all possible, with young men.
20 As I say in the report obtained from Mr Cardiff, he set out the issues that you have in front of you. Indeed, at the time of this offence, you had left a detox centre and had not slept for approximately five days, being on some type of “ice” binge. He noted the difficulties that you have had in jail, your observations and circumstances you have already told this Court about today. He also realistically noted the difficulties that you may have in adhering to the requirements, not only of youth justice when you are in the centre, but when you are paroled.
21 Despite all of those matters, a positive recommendation was made on your behalf. It was their view that you have reasonable prospects to effect rehabilitation and that owing to your immaturity and age, further periods in adult prison are not recommended. However, it is noted that even in prison you have been again involved in an issue of violence and drugs. Mr Cardiff realistically said, based on the above information, whilst there are concerns about your suitability, given that this is the first time that you have been sentenced to a period of custody, you have been assessed as suitable for a youth justice centre order by the Department. That is a valuable report, as far as you are concerned.
22 I made appropriate orders insofar as compensation and s464ZF. I think I have signed both of those. Madam Associate, have I? I have not done the compensation. Right, well I will sign that.
23 I have heard today from your mother, as I said, which should embarrass you for the rest of your life, to have to call on your mother to try and assist you. Your behaviour generally in regards to her can only be described as outrageous.
24 I have had the benefit of asking you to consider your position over the last week and the letter you prepared (Exhibit 2) has come about from close consideration of your position. Again, as seems consistent with you, it is quite honest; it sets out the difficulties that you had, and suggests that in the future you intend to change. The major change, of course, which your mother is confident you will be able to effect, is to obtain employment and to further your education, both of which are matters you have the capacity to do.
25 You have now been in an adult position long enough to realise the stupidity of such placement. The only thing you can look forward to there is building up your biceps and walking around in circles. Not the greatest of lives. Your evidence today in cross-examination is that you have been four and a half months drug free, that you are fully aware of your obligations within a youth justice centre, and the obligations that would apply on an issue of parole, and the circumstances that would apply if you play up while you are in youth justice, being that you can be placed back in adult custody.
26 These matters are always very difficult considerations for a Court. As I said the other day, you should not take the view that because this report was being sought, that an order would be made. However, having heard from your mother and yourself this morning, having been impressed by your letter, having, from the psychological report, some confidence that you have the ability to make something of your life, if you are given a chance, the principle of rehabilitation must loom very large in this sentence. Of course, there is also the need for an appropriate sentence to appropriately denunciate the commission of armed robbery in broad daylight on a person simply going home from a 7-Eleven where he bought some goods. These matters are never easy but in the totality of the balancing process, I have determined that it is appropriate to make a youth justice centre order. In doing so, I hope that while you are in the youth justice centre that you will get appropriate counselling and help insofar as your issues, firstly, in regard to drugs, and secondly, in regard to grieving and the capacity to be able to grieve properly and not in the way you have done to date.
27 I accept totally the matters put to me by counsel for the DPP as to the aggravating factors in this matter. I do not find that the suggested upper end of confinement is required in these circumstances, on the basis of the totality, and that will become apparent from the sentence I impose.
28 Yes, if you would stand please, Mr Lovell.
29 In regard to these three charges, I intend to sentence you to periods of detention for each of them in a youth justice centre. On the first charge, you will be sentenced to a period of detention of six (6) months. On the charge of armed robbery you will be sentenced to a period of detention of two (2) years and on the third charge of intentionally injuring a person you will be sentenced to a period of six (6) months’ detention.
30 Pursuant to s32 of the Sentencing Act 1989, those periods of detention run concurrently, so that the totality of your sentence by way of detention is a period of two years, and I order that that sentence begin today. I also order, pursuant to the provisions of s35(1) of the Sentencing Act 1989, that the period that you have served to date, being 179 days, should be deemed as service of this sentence, and a declaration to that effect be recorded in this Court.
31 That will probably mean, because of the administrative role in these sentences, that it will not be all that long before you are released, hopefully with a proper regime. I hope you fully understand the demands of that. It seems to me in your letter you understand the risks that you face. Your comments to the psychologist were a fairly realistic assessment of the dangers of you being drug addicted again outside. All I can say is I hope you have got the gumption now to do it, because I think you have been a burden enough on your family, and it is time for you to stand up and be a man. You need show the community, and most importantly your family, that you can do it. I wish you well.
32 Insofar as I am able to comply with the requirements of Parliament that somehow I discern from the totality of the reasons for sentencing what I would otherwise have done, had you not pleaded guilty, all I can say is that you certainly would not have been going to a youth justice centre.
HIS HONOUR: Madam Prosecutor or Mr Cass, any other matters that I need to attend to?
MS ZAMMIT: No Your Honour.
MR CASS: No Your Honour.
HIS HONOUR: Yes, well good luck, all right? Yes, take Mr Lovell away. Good luck Mrs Lovell, let us hope things work out. I am happy to see you again but I do not want to see your son again, all right? Yes, we might stand down and we will get the next matter. Thank you for your assistance counsel.
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