Director of Public Prosecutions v Major

[2019] VCC 724

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02155

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MAJOR

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2019
DATE OF SENTENCE:	21 May 2019
CASE MAY BE CITED AS:	DPP v Major
MEDIUM NEUTRAL CITATION:	[2019] VCC 724

REASONS FOR SENTENCE
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Subject: Attempted armed robbery and intentionally cause injury
Catchwords: Guilty plea – 23 years old – limited criminal record – intellectual disability – lesser role in the offending – positive response to CISP bail after release from remand custody – support mother and partner
Legislation Cited:
Cases Cited:
Sentence: community correction order for 2 years and 6 months with a justice plan and conditions including 150 hours unpaid work

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms E. Strugnell
For the Accused	Ms D. Jovanoska

HIS HONOUR:

1Andrew Major you have pleaded guilty to one count of attempted armed robbery and one count of intentionally cause injury.  The circumstances of your offending are set out in the summary of prosecution opening, Exhibit A.  On
8 June 2018, you had been drinking with your co-offender, Nathan Baker at Q Lounge in Melton.  Around 11.30 pm, you saw the victim, John Shram, who was known to both Baker and you.

2The two of you approached Shram on the footpath near where he lived in supported accommodation and asked him for cigarette.  Baker demanded the rest of his cigarettes and, when Shram refused, took a taser out of his pants pocket and turned it on.  When Shram said he had a heart condition, Baker replied he did not care.  Baker and you demanded his money and phone and when Shram said 'No', Baker tasered him to his left thigh.,

3Shram tried to back away, but Baker blocked his path and tasered him three more times to his thighs and stomach.  Shram felt heart palpitations and he could not breathe.  When Shram banged on the window of the worker's room in his accommodation, you said, 'Don't do that dog' and struck him to his left temple, his head and lip.  The cut to his lip required surgical repair.

4After the attack, both Baker and you sent Shram Facebook messages of apology.  Baker wrote, 'Hey brother, sorry about last night.  Me and Drew', a reference to you, 'were blind, as can't remember much.  You all good?'. 
Mr Shram made a statement of complaint to police on 11 June.  He did not subsequently make a victim impact statement. However, I take into account that he was vulnerable, and you knew it, and that your attack, yours and Baker's attack on him will have been a frightening experience.

5Police arrested you on 28 June 2018.  When they interviewed you, at first, you denied knowing Baker and claimed you intervened to break up a fight between a friend another man.  The incident had been captured on CCTV footage and when police showed you CCTV stills, and told you details of Shram's complaint, you admitted you struck him three times to the head. In relation to the demand for cigarettes and money, you said you could not remember much of the night because you were drunk.  You said you had drunk ten cans of Bourbon inside Q before the altercation. 

6You were charged with armed robbery and remanded in police custody.

7Less than a week before you offended, you had been charged with other offences and were bailed to appear at the Magistrates' Court at a later date.  It is an aggravating feature that you committed this offence while you were on bail (Summary Charge 6).  You were also in breach of a curfew condition of that bail (Summary Charge 7).

8I have read summaries of your prior offending which were Exhibit B. 

9On 2 December 2017, police intercepted you when you were driving your car and you were charged with driving offences.

10On 2 June 2018, you had an argument with a neighbour and assaulted him.  You punched him to the face and you hit him with a garden stick.  The next day you returned to apologise.  When he would not accept your apology, you punched his fence and damaged it.

11On 6 September 2018, you appeared at the Sunshine Magistrates' Court and were released on a community corrections order.  You appeared again on
14 December 2018, in the same court, and for offences arising out of the dispute with your neighbour, a second community corrections order, with treatment and rehabilitation conditions and a justice plan, was made. 

12You otherwise have a limited prior criminal record.  In 2012 when you were 15 years old, you were placed on an accountable undertaking in the Children's Court for graffiti related offending and possessing cannabis.  In 2017 when you were 20 years old, you appeared twice in the Magistrates' Court for driving and for minor dishonesty offences.  You were sentenced respectively to an adjourned undertaking and a fine.

13After you were charged with the armed robbery, you were remanded in custody until 15 August 2018, when you were admitted to bail.  Since then, you have engaged with the CISP Bail Program, as well as Community Corrections Services for your two community corrections orders and, on your lawyer's referral, with the Youth Umbrella Project, which provides Targeted Youth Service interventions to reduce the risk of reoffending and to increase resilience for disadvantaged young people across the Brimbank region.

14I have read a YUP Progress Report, dated 19 September 2018, provided to the Magistrates' Court and a YUP letter of support, dated 27 March 2019, addressed to me.  I was also provided with an earlier report which sets out some of your family history. 

15You were born on 27 April 1996 and were raised by your mother and have lived with her all your life.  When you were an infant, you were diagnosed with hydrocephalus, which causes a build up of fluid in the brain's cavities.  A shunt was surgically inserted to control the symptoms.

16You have significant deafness on one side and have an intellectual disability as defined by the Disability Act.  You have a long history of learning difficulties and left school after Year 8.  You have worked as a landscaper, a furniture removalist and a meat worker, but because of your disability, you have found it hard to keep a job.  You receive a disability support pension and your mother, receives a carer's pension to look after you.  You were supported by your mother and your partner, both on the plea hearing and today.

17From your teenage years, you have a self-confessed history of misusing illicit substances, including smoking methamphetamine.  Through the YUP, you were referred to Western Health to address your drug and alcohol issues. You successfully completed an Alcohol Treatment Program and you have been seeing a psychologist, Graham Miller, for treatment for depression, anxiety and sleep disorder, as well as your learning disorder.

18The YUP programs coordinator, Kerry Cowling, wrote you have shown a large level of commitment to participate in all treatment.  She also noted you have received significant support from your partner and your mother.  Your mother gave evidence before me.  She said when she visited you in gaol, you were tearful and appeared traumatised.  She said that for twelve months prior to your arrest, you had been binge drinking.  It is to be noted that this offending occurred in the context of your  heavy drinking, but she said you have changed since your first experience of incarceration.

19She said you appeared to understand the impact of your attack on Mr Shram and that you have not been drinking alcohol.  You have been attending your appointments with your girlfriend's help and you see positive outcomes ahead.  What she has said was consistent with what you told the assessing Corrections officer when I had you assessed for a community correction order.

20Your counsel, Mr Desmond, in written and oral submissions, relied on your relative youth, your limited criminal record and your intellectual disability in mitigation of penalty. He acknowledged that your offending is serious, but submitted that your punishment should be moderated, taking into account those three factors.

21Because you have an intellectual disability, you have access to special services designed to reduce the risk of your reoffending.  Mr Desmond submitted your early plea of guilty is evidence of your remorse, an acceptance of responsibility for your actions and has the utilitarian value of the trial spared.  He submitted your prospects of rehabilitation are reasonable, having regard to your limited criminal history, family support, good work ethic and the lesson you have learned by the salutary experience of incarceration.

22As I said, whilst he acknowledged your offending was serious, and that
Mr Shram was a vulnerable target who was doubtless, scared and frightened, he submitted yours was a low end example of armed robbery, taking into account the lack of premeditation, the short duration of the attack and your lesser role. 

23He submitted because of your relative youth and intellectual disability, your rehabilitation would be compromised by a further period of incarceration and that the purposes of justice punishment and rehabilitation can be met by an appropriately fashioned community corrections order, with a Justice Plan attached.

24Ms Strugnell, who appeared for the prosecution, made the primary submission  the seriousness of your offending warranted the imposition of a further term of imprisonment. Ms Strugnell conceded, if your progress on the current community corrections orders was satisfactory, your interests and the community interest may be better served by a sentence which did not require your incarceration.  She suggested I should consider deferring your sentence to give you the opportunity to demonstrate you are compliant with the existing orders. 

25I decided to obtain an extended pre-sentence report, to learn about your performance on the two current community corrections orders, and a disability justice report, to ascertain whether there were disability justice services available to you. 

26You have been assessed as suitable for another community corrections order, largely because you appear motivated to comply with one.  Your time in gaol does appear to have taught you a lesson and as you told the Corrections assessment officer, you would rather do a community corrections order than gaol time.  However, one of the challenges of another community corrections order is that it adds to the obligations of your two current community corrections orders. Presently, you are required to attend your community corrections officer for supervision, Department of Health and Human Services staff, for the justice plan, your psychologist, Mr Miller, for counselling and also Visy Hub staff.  At times you feel the demands of the community corrections orders are too great, but you have kept a positive attitude to the services working with you and you understand they are helpful to you.  Overall, I accept that you are performing reasonably well on your current community corrections orders and you appear capable of completing another.

27In all the circumstances of your case, I have decided the imposition of a community corrections order will best serve the interests of the community and you.  I accept Mr Desmond's submission that imposing a further term of imprisonment would compromise your rehabilitation. 

28Please stand Mr Major. 

29You are convicted of both charges, attempted armed robbery and intentionally cause injury, and released on a community corrections order, for 2 years and 6 months, to commence today, with a special connection you perform 150 hours community work. I direct under s.48(c)(a) of the Sentencing Act, that 75 hours of the treatment conditions I will impose, may be credited towards your community work hours.  The other special conditions I impose are drug assessment and treatment, alcohol treatment, mental health, offender behaviour programs, supervision and a justice plan.

30I accept Ms Strugnell's submission that a condition of judicial monitoring would be appropriate in your case and I direct that you attend for judicial monitoring in this court, before me, when I will review your progress.  . 

31You will be required to attend court on 26 November at 9.30 am, when I will have received a report from Community Corrections about your progress.

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