Director of Public Prosecutions v Martin

[2013] VCC 2214

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-13-02083

DIRECTOR OF PUBLIC PROSECUTIONS

v

MADISON MARTIN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	16 December 2013
DATE OF SENTENCE:	17 December 2013
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2013] VCC 2214

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones
For the Accused	Ms Taylor

HIS HONOUR: 

1Madison Martin, you have pleaded guilty to the following charges in this court yesterday.  Charge 1, possession of an unregistered firearm whilst being a prohibited person.  The maximum penalty for that is 15 years' imprisonment.  Charge 2, theft of money from Ashley Roberts.  The maximum penalty for that is ten years' imprisonment.  And Charge 3, possession of methylamphetamine.  The maximum penalty in your case is one year imprisonment.

2These were the charges on the indictment.  You also pleaded guilty to related summary offences at your arraignment.  Those charges were - and the numbers are as they were at the Magistrates' Court - Charge 8, being a learner driver without an experienced driver beside you, Charge 9, failing to display an L Plate, Charge 14, driving a motor vehicle whilst having a prescribed concentration of drug present in your oral fluid.  Each of these charges are financial penalties.

3You were also charged with and pleaded guilty to possession of a controlled weapon.  In that case it was an Excalibur knife.  This charge has a maximum penalty of one year imprisonment.  And Charge 16, which was the assault of Ashley Roberts with a weapon.  In that case it was a sawn off shotgun.  The maximum penalty for that is two years' imprisonment.

4The circumstances of the offences are as follow:

5You were friends with Ashley Roberts.  You had bought and sold drugs together, each of you have travelled to Horsham to purchase a sawn off shotgun.  In the day leading up to these offences you agreed to purchase drugs to the value of $1400 on a half each basis with Roberts.  You were not happy with the quality of drugs that Roberts had obtained for you in the past.

6The offending is set out in the prosecution summary, which was Exhibit 1 on the plea, and it is worth reporting.  On the evening of 19 April 2013 or early morning of 20 April you and your girlfriend picked Roberts up and drove to Kangaroo Flat.  Roberts was unsure about where you were going that night.  You had $700 cash in $50 notes from Roberts for the purchase of the drugs.  You pulled over and you told Roberts that you were at the address and to get out of the vehicle.  That is the charge of theft.

7You and Roberts got out of the car.  You then pulled out your sawn off shotgun, put the gun to Roberts' face and then started waving the shotgun around wildly and putting it back in Roberts' face.  This put Roberts in fear of his life.  That is the basis of the transferred summary charge of assault with a weapon and the offence of having possession of a prohibited unregistered firearm.

8You then were making no sense with what you were saying and Roberts was in shock.  Roberts ran away from you out of fear of being shot and killed.  You got back in your car and left the area without the passenger, Roberts.  Roberts found a phone box in Station St, Kangaroo Flat and called a taxi.  Once Roberts got home he told his partner of the incident which is when they then called the police.

9After the incident you had attended at an associate's address at 171 Thistle St, Golden Square where you gave the shotgun to the occupant, Kenneth Morgan.  You then are said to have paid Morgan $1000 to store the firearm.  You told Morgan that you would be back at a later time to collect the gun.

10You then were intercepted driving your car by the Special Operations Group at approximately 5.10 in that afternoon.  At the time of driving you were the holder of a learner's permit only.  You had not a properly licensed supervisor with you.  That is the transferred summary of offence of learner driver without supervision.

11You then also were not displaying L Plates on the car.  That is the basis for the L Plates offence.

12You were arrested and conveyed back to the Bendigo Police Station and were not interviewed due to your drug affected state.  You were requested to undergo a preliminary breath test, which returned a negative reading, and subsequently you were requested to undergo a preliminary oral fluid test, which you then returned a positive reading.  And that is the offence of driving whilst drug affected.

13Police executed a total of five search warrants at various addresses, including 171 Thistle St, Golden Square, where you had frequented.  They were in search of the shotgun.

14During these searches police located a zip lock bag of methylamphetamine, which is the basis for Charge 2 of possession of drug of dependence, and the Excalibur knife, which you had in your possession when arrested.  That was also a controlled weapon.

15After your arrest you were interviewed by police and denied any and all of the allegations.  On 26 April 2013 you informed police of the whereabouts of the shotgun and assisted police in its recovery.

16Since your arrest on 20 April 2013 you have been in custody.  That is a total of 241 days to today. 

17You have indicated your plea of guilty to the current charges at the earliest possible time and this course was finalised on 31 October 2013 at the committal mention stage.

18In short, after your initial reluctance you have cooperated with the police in the recovery of the shotgun and pleaded guilty at the earliest possible time.

19Your personal circumstances.  You were born on 16 July 1993 and you are now 20 years old.  At the time of the offences you were 19.  You are to be sentenced as a young offender where great weight is to be given to rehabilitation of you.

20You are no stranger to the criminal justice system.  You have three prior appearances in the Bendigo Children's Court.  On 18 May 2011 you were dealt with for burglary and theft.  On that occasion you, without conviction, were placed on a good behaviour bond.

21On 20 June 2011 you returned, again for burglary and theft, to the Bendigo Children's Court, again you were without conviction and placed on probation.

22On 8 June 2012 you came before the Bendigo Children's Court for recklessly cause injury, unlawful assault, burglary and theft, theft of a motorcar, possess a prohibited weapon, possess drugs of dependence, learner driver without having an experienced driver beside you and driving an unregistered vehicle.  A lot of those charges are common to these current ones before the court.  On that occasion you had already served 63 days' imprisonment and that was your penalty as reckoned time served.

23As I say, these offences are almost direct pattern offending as the current offences before the court.

24You then graduated to offending dealt with in Bendigo Magistrates' Court on 20 June 2012, you were dealt with for dishonesty, removing goods, going equipped to steal, resist police, failing to answer bail, supply a drug of dependence, contravene a Family Violence Order and reckless conduct endanger life.  On that occasion you were placed on a community corrections order for a period of 12 months.

25On 12 November 2012 there were further driving offences where you were fined and then you were dealt with for the breach of the CCO.  On that occasion you received a total of six months YTC.  That was immediately before these offences.

26You committed these offences within seven weeks of your release from the Youth Training Centre.  You were released on 4 March 2013.

27What that means is that from 12 November 2012, 13 months ago now, you had been free for seven weeks. 

28You are the eldest of three children.  You have a younger brother and a sister.  Your parents are still married and both work.  Your mother is a critical care nurse at the Bendigo Hospital, your father is a labourer and welder.  You are expecting the birth of a child with your ex-partner, Sharnee.  Sharnee has relocated to Sydney whilst you have been in custody.

29Your education has been unremarkable.  You completed primary school at Eaglehawk North Primary School, you then attended Eaglehawk Secondary College and completed Year 10.  You showed some promise in electronics and computer technology.  You commenced Year 11 but left because of your fighting with your mother.

30You became addicted to computer games and in particular Call of Duty.  After an altercation with your mother over this addiction or your use of these games you moved to your grandmother's.  You then couch surfed for a while, using drugs and in particular Ice.

31You also had been working in factories as a concreter.  Your then girlfriend, Sarah, had taken your money but not paid the bills relating to your house.  You lost your home, your girlfriend and then your money.  Your response to this was to escalate your use of Ice.  You ended up in YTC.

32Since being in custody you have completed courses in drug rehabilitation, Welding Certificate ii, First Aid Certificate i and ii and the barista course.  You have worked as a welder whilst you’ve been in custody.

33Whilst in custody also your grandmother became very ill and passed away.  This impacted on you in two ways. First you were not there to assist her while she was ill and secondly you were unable to activated a release to attend her funeral due to the current correctional pressures.  It was submitted that whilst you were disconnected from your family, and I am referring there to Lechner's report, you have availability of family support on your release.

34Your mother was in court yesterday for your plea and she is here again today.  I am told your sister has visited you in prison.  Clearly you have breached the family relationship by your drug use and offending.  In order to access family support you need to understand no drugs and no offending.

35Ms Lechner, psychologist, in her report dated 27 November 2013 states "In light of an apparent positive family history for mental illness, Madison is at risk of developing serious psychiatric problems if he continues to use Ice or if he relapses to cannabis use".  That is an expert saying that.  That is the key for you.  If you use drugs you become psychiatrically unwell and you then offend and you cannot control your impulses.  Whilst in custody you have been taking anti-depressant and anti-psychotic medication.

36I now turn to sentencing considerations for you.

37The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to the range of factors such as the seriousness of your offences, your culpability for them, your personal; circumstances and those of the victim, Ashley Roberts.

38I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community of seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into the society.

39I was told that Mr Roberts had an opportunity to file or serve a victim impact statement and he did not take up that opportunity.

40I also have to take into account your youth.  At the time of the offences you were 19, you are now 20.  In Ms Lechner's opinion you are emotionally immature and you suffer from mental health vulnerabilities.  I do not think your rehabilitation will be assisted by a lengthy term of imprisonment, especially if ordered to be served with older and more seasoned prison inmates.

41The prosecution submitted that a sentence of a two to three year period in a youth justice centre was appropriate.  Now that you have spent all of 241 days in adult prison, combined with the history of only lasting seven weeks from your last sentence at YJC, I think you have outgrown that option and imprisonment in an adult facility is the only appropriate place for incarceration for you.

42I note your youth and the rigors of being on remand for so long for the first time in adult gaol when fixing the total sentence.

43I assess that you need direct and close supervision upon your release from gaol to allow you time to adjust to society outside and to redirect you into a useful and fulfilling life.

44I had you assessed for a community corrections order, as you know, in order to see whether that was an option for you.  Further to that you have pleaded guilty.  You have pleaded guilty at an early stage in these proceedings.  The plea was indicated before the contested committal conducted on your behalf, your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea indicates public confidence in the legal process set up to protect the community.  You have, by your plea, relieved your victim, Ashley Roberts, from giving evidence against you.  It facilitates some closure for him as a victim of your offending.

45The plea of guilty also indicates and demonstrates your remorse.  After your initial resistance to police you have cooperated with them.  Your plea is clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community. 

46You have expressed regret and shame to Ms Lechner about your offending.  I previously dealt with the impact on you of your remand time in adult prison, your approach to rehabilitation by taking courses and working in prison and the change in your family's approach to you upon release from gaol.

47Would you stand please?

48On the charges on the indictment, Charge 1, you are convicted and sentenced to eight months' imprisonment.

49On Charges 2 and 3 you are convicted and placed on a community corrections order for 12 months with the conditions of community work of 200 unpaid community work, treatment and rehabilitation for drugs, treatment and rehabilitation for mental health, treatment and rehabilitation for progress to reduce re-offending, and the fifth one is supervision.

50On the summary charges, Charge 8, you are convicted and fined $500.

51On Charge 9 you are convicted and fined $100.

52On Charge 14 you are convicted and fined $400.  On that charge all licenses are cancelled and disqualified for a period of 12 months commencing today.

53Charge 11 you are convicted and fined $500.

54Charge 16, which is the assault charge, you are convicted and sentenced to six months' imprisonment.  I order that three months of this sentence be served cumulatively upon the sentence in Charge 1 on the indictment.  That is a total effective sentence of 11 months' imprisonment.

55I declare that you have served 241 days pre-sentence detention.

56Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty I would have sentenced you to three years' imprisonment with two years non-parole period in adult prison.

57I make the forfeiture order in respect to the weapons.  I will hear about the cash but I am inclined to make the forfeiture order about the cash that was seized on you and also order that the forensic sample order, which is I think a retention order.

58Was there anything else - sorry, I will deal with the cash - - -

59MS TAYLOR:  There is no opposition to that forfeiture order - - -

60HIS HONOUR:  Thank you.

61MS TAYLOR:  The full amount of cash.

62HIS HONOUR:  So just to clarify that, I will make the forfeiture order in respect of the cash that was seized on you at the time of your arrest.

63MS TAYLOR:  As Your Honour pleases.

64HIS HONOUR:  Thank you.  Take this opportunity, Mr Martin.  Today is the fork in the road for you.  Sorry, I forgot to say that you are to report at the Bendigo Community Corrections Office, which is at 18-20 St Andrews Avenue, Bendigo, when you are released.  This is a community corrections order, you read it and if you are happy you sign it.  So you have read through this community corrections order and you understand it and a copy of it will be given to you and that is your signature on the bottom, is that correct?

65PRISONER:  (No audible response.)

66HIS HONOUR:  Thanks. 

67MS TAYLOR:  Sorry, sir, I just query the date on this order.  It seems to commence from today.

68HIS HONOUR:  Right.

69MS TAYLOR:  Whereas I understand - - -

70HIS HONOUR:  The order of 12 months commences - - -

71MS TAYLOR:  Three months - - -

72HIS HONOUR:  - - - today but he commences his CCO when he gets out.

73MS TAYLOR:  The order will last for 12 months and commences from 17 December.  All right, thank you, sir.

74HIS HONOUR:  Are you right with that, Ms Taylor?

75MS TAYLOR:  (No audible response.)

76HIS HONOUR:  Yes, thanks.  Ms Martin, we will just have to do a court order because you are in custody so that the officers can take you.  You have got about two and a half months in front of you on my calculations, then you have got the CCO.  Is there some place just out the back there you can keep him?  Thank you.

77(Prisoner removed.)

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