Director of Public Prosecutions v Mathews
[2017] VCC 267
•20 March 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02282
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENTON JAMES MATHEWS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2017 | |
DATE OF SENTENCE: | 20 March 2017 | |
CASE MAY BE CITED AS: | DPP v Mathews | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 267 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – youthful offender
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms N. Hartnett | Lethbridges |
HER HONOUR:
1 Brenton Mathews, you have pleaded guilty to an indictment containing one charge of common assault, one charge of armed robbery and one charge of theft. Those charges relate to events that occurred on 24 September 2016 and in addition, you pleaded guilty to a summary, Charge 6, which was a charge of driving a motor vehicle at a speed dangerous. That relates to an event on 25 September 2016.
2 You are currently 18 and you were aged 18 at the time of this offending. You do not have any prior criminal history.
3 I shall proceed to sentence you on the basis of the summary of the facts as set out in the Crown opening that was marked Exhibit 1.
4 At the time the offending the subject of the indictment occurred, you were with Benjamin Costello. He is aged 27.
5 Following his arrest he has been remanded in custody. He is contesting these charges, and a contested committal is due to take place in June 2017.
6 I was informed by the parties that he has relevant prior criminal history, although I am not aware of that.
7 Ms Blayne Devisser, who is a co-accused and has been charged with one charge of theft of motor vehicle and one charge of exceeding the speed limit, was dealt with at the Melbourne Magistrates’ Court in March 2017 and placed on a 12 month good behaviour bond in respect to those charges.
8 Briefly, the circumstances of the offending that took place on 24 September 2016, are that you were at 13 Redan Street, North Bendigo with your partner, Blayne and her then two-year-old Ruby. You met with the co-accused, Costello, and his partner, Melissa McGauley, and another female occupant. You were all standing in the front yard of those premises.
9 At about the same time another vehicle, a Volkswagen Passat (“the vehicle”), containing the victims, Oliver Hay, Troy West and Ethan Baker, attended a nearby address, No.9 Redan Street, North Bendigo. Oliver Hay was aged 19, Troy West was aged 19, and Ethan Baker was aged 18. They attended the property with the intention of purchasing a stick of cannabis from another person who lived at that property. Troy West, the driver, had permission to drive the vehicle from his mother, Tania Christie, the owner of the vehicle.
10 West parked the vehicle in the driveway of No.9 Redan Street, and then his passenger Hay left the vehicle and went inside the house. Baker remained seated in the front passenger seat and West remained seated in the driver’s seat.
11 Costello saw the black Volkswagen Passat station wagon and walked over towards the parked vehicle. He picked up a tree branch that was about a metre in length and approached the driver’s door and struck it with the branch. West wound down his window and asked Costello what he wanted. He said he wanted some drugs. West told him that he did not have any and to leave him alone.
12 Costello then reached inside the window and removed the keys from the ignition. West struggled with him. The keys dropped between the seat and driver’s side door. Costello then punched West to the head. He opened the driver’s door and put the tree branch in the door, wedging it open and thereby preventing it from being closed. The keys then fell onto the ground outside the car. West managed to shut and lock the driver’s side door. Costello picked up the keys from the ground.
13 Whilst inside No.9 Redan Street, Hay had heard the commotion coming from outside and walked out the front door. He asked Costello what he was doing. Then Costello turned his attention towards Hay, while still holding the tree branch and raising it above his head. Hay backed away fearing that Costello was going to hit him with the branch.
14 Mr Mathews, you then walked over from No.13 Redan Street and jumped the fence into the front yard of No.9 and approached Hay. Hay retreated back inside No.9 and Costello followed him. As you approached the front door you picked up a golf club from the ground in the front yard and entered the house. Costello followed Hay and punched him, causing him to fall onto the lounge room floor. Costello continued to punch and kick him and shout, “Where’s your gear?” You remained outside the living room and confronted another, Trevor Arthur, who was living at the house at the time, saying to him, “Don’t even think about it”, believing that Arthur intended to intervene to stop the attack. Those are the circumstances of Charge 1, common assault.
15 You and Costello then returned to the vehicle that was parked outside and approached the Volkswagen driver’s door. You demanded that West get out of the vehicle. You were still armed with the golf club and when he refused to leave the vehicle, you counted down from three before swinging the golf club at the driver’s door. The impact caused the window to smash and glass shattered onto West. The force of the swing broke the golf club in half.
16 Costello then punched West to the face through the broken window causing his knuckle and forearm to be scratched. At the same time you also struck West with the broken golf club to his face. West and Baker fled from the vehicle, ran up Redan Street and approached a stranger seeking her assistance to call police.
17 Costello got into the Volkswagen Passat and using the keys that he had already taken possession of, reversed out of the driveway. He then stopped outside No.13, got out of the driver’s side door and walked around to the front passenger’s seat and got in. You then walked down from No.9 to No.13 Redan Street, where you told Devisser to get her daughter and follow you in the hire car that she had in her possession. You then walked round the driver’s side door of the Volkswagen Passat, kicked the broken window out onto the street, and you then drove off. Those are the circumstances of Charge 2, armed robbery.
18 Each of the victims who were assaulted received injuries that included redness, swelling and soreness. None of them received medical treatment for their injuries.
19 Having left Redan Street, you drove the vehicle to a remote area between Epsom and Eaglehawk and left it obscured in the bushland off the roadway. You then removed the head rests, GPS and blue tooth device and with the assistance of Costello transferred those items belonging to Tania Christie, Hay and West into the vehicle Ms Devisser was driving.
20 At about 5.35pm, you drove the stolen vehicle with Costello sitting in the passenger seat to Epsom BP. You then filled the stolen vehicle with $51.17 worth of diesel, and made off without any attempt to pay for the fuel. That constitutes the facts of Charge 3, theft.
21 Later that evening you travelled in convoy with Devisser towards Melbourne together. She was driving her hire car and you were driving the Volkswagen Passat. You had Devisser’s daughter in that vehicle. On your own admissions, you drove the stolen vehicle at speeds between 160 to 180 kilometres per hour on the Calder Highway, which is marked with 100 kilometres per hour, or alternatively 110 kilometres per hour, speed zones. That constitutes the related summary charge of drive at a speed dangerous.
22 On 25 September 2016 at about 2.56am, Devisser was intercepted on the Calder Freeway, Carlsruhe. Police searched the vehicle and located several items belonging to Christie, West and Hay inside the vehicle. She was then arrested and transported to Kyneton Police Station for interview.
23 You continued to travel to Geelong. You were then contacted by Devisser and informed about her whereabouts. You then returned to Kangaroo Flat, leaving Devisser’s child at your brother’s address. At about 1.10pm you surrendered yourself together with the stolen vehicle at the Bendigo Police Station.
24 When interviewed on that day, you initially denied being present with another person but ultimately made full admissions in relation to the offending. You admitted being at Redan Street and witnessing the altercation with Troy West, and picking up the golf club and striking the vehicle’s window once West locked the door. You admitted going into the house with the golf club for protection to “back” your mate. You said that you made sure no one else went out the front and you said, “What are you doing Benny?” You admitted taking the Volkswagen Passat, and that you were driving at between 160 to 180 kilometres per hour on the Calder Freeway and you also admitted stealing the diesel.
25 Mr Mathews, these charges are serious as is evidenced in the maximum penalties that apply; and that is 25 years’ imprisonment for armed robbery; ten years’ imprisonment for theft; and five years’ imprisonment for common assault. In respect to the driving charge, the maximum penalty is 240 penalty units or two years’ imprisonment.
26 I note that your matter was settled at committal mention stage and a plea of guilty was entered, with there being no necessity to call any witnesses. The Crown accepts that this was a plea of guilty entered at the earliest opportunity.
27 Mr Mathews, the impact of your offending has been great, and that was clearly evidenced by what was said in the Victim Impact Statements from Troy West, Ethan Baker and Tania Christie.
28 Troy West describes fearing for his life. He has had sleepless nights and has ruminated about this incident. He is now too frightened to go outside his house and afraid of people walking beside his car. He lacks trust with people, even his family and friends, and including parents. He has not been able to see a counsellor because he cannot trust anyone. His mother is in financial debt as a consequence of the incident. He says his whole life has been turned upside down and his mental health has deteriorated, and he feels very depressed.
29 Ethan Baker confirms that whilst he was not physically hit, he still has suffered the consequences of being present when this nasty event occurred. He feels guilt about not being able to stop the incident and has difficulties with extreme anxiety and has lost his ability to trust others. He does not leave his house unless it is an emergency, and when travelling by car or sitting in a parked car he becomes extremely anxious and worried about what might possibly happen. He feels that he has lost order in his life and he feels mentally ill. His quality of life has probably changed, probably forever, and he says he will not be able to look at people the same after such a random attack.
30 Tania Christie confirms in her statement that the vehicle that was taken had been severely damaged. She says following the incident there has been extreme pressure on her relationship between herself, her son and an ex-partner who is the father of her son. Her son has been extremely emotional and is no longer communicating with her effectively. It has caused her to struggle emotionally as well. She did not just lose her vehicle, she lost her son, her best friend, and her ability to be able to see her child. She has become very depressed and ill due to the stress associated with this incident. She has been seeing a psychotherapist for counselling. So that really does spell out the impact of your unwarranted and vicious attack.
31 Mr Mathews, there are many aggravating features to the offending. I accept it was spontaneous, but it was an unprovoked and vicious attack. It involved you and your friend arming yourselves with weapons. You picked up the golf club; he picked up the tree limb. All of it was unnecessary and unprovoked.
32 In sentencing you, there is a real need for the court to denounce your behaviour. Acting as you did, in such a violent, unprovoked manner, in company with Mr Costello when stealing the vehicle and being involved in the common assault, was serious. This is in my view, a very serious example of the very serious offence of armed robbery.
33 I am mindful of your youth, and the youth of an offender, particularly a first offender, is a primary sentencing consideration, and rehabilitation is most important, and the principles of R v Mills[1] apply. But on the other hand, the court must, given the very serious nature of this offending, also consider giving prominence to the sentencing objectives of deterrence, denunciation, protection of the community and just punishment.
[1] [1998] 4 VR 235.
34 Overall, I have concluded, having regard to the grave nature of your offending, that it is of such seriousness that the weight to be attached to your youth is reduced to an extent. Nonetheless, it is still a powerful mitigating factor.
35 Your explanation for becoming involved in this offending was “misguided loyalty”. It is accepted by the prosecution that Costello initiated the incident. However, you played an active role once you joined with him in this offending.
36 I note that you were a heavy drug user at the time. You were combining ice with cannabis and that caused you to behave in such an erratic and unpredictable manner. Whilst it is accepted these events escalated quickly and were spontaneous, nonetheless they are very serious. Whilst your drug-taking provides an explanation for your involvement, it in no way excuses your behaviour on this occasion.
37 Following your arrest and remand on 25 September 2016, you have been in custody. You have had time spent in the cells at Bendigo Police Station and Mill Park Police Station, and then you have had other periods of detention at Metropolitan Assessment Prison, Metropolitan Remand Centre to Marngoneet Prison. You are currently being held at MAP.
38 Your conduct on remand does reflect, to a degree, good prospects for rehabilitation. You have used the time productively, and you appear to have settled. You have been attending gym daily and for some time you were employed in horticulture five days per week. All urine screens that have been obtained have been negative, and therefore you have been drug-free since custody.
39 The background to the offending was that you had experienced four years of homelessness. You were living a chaotic and transient lifestyle. Sadly you have no relationship with your parents and you are estranged from both of them.
40 Your family situation is described in some length in your sister Janelle's letter that was provided to the court. It is the case that your mother left her violent relationship with your biological father when you were only young. She subsequently formed another relationship with man, with whom she had two boys, your younger half-brothers.
41 It is said that your father was a very strict disciplinarian, and that you were often the subject of physical punishment. It is obvious that your disrupted and difficult background has had a real impact upon you, and I have taken that into consideration.
42 You have always struggled at school. You only finished year eight. It is also the case that you, from a very young age, began using drugs, which led to behavioural issues, so that your formative years have been ones without direction, support or proper role models.
43 Your sister Janelle is your older sister. She is very supportive of you and has been present in court for each of the plea hearings. She does not excuse or condone your behaviour in any way, and attributes your behaviour to using drugs.
44 She confirmed your past family life has been extremely difficult. She nonetheless has a very positive relationship with you. She has spent time talking with you since you have been in gaol, and you have told her that you do not want this life to continue. You acknowledge that you are better than the conduct that you engaged in on this occasion, and you can do more with your life. Her hope is that you are now motivated to get your life back on track and become a respected member of the community.
45 You do have some outstanding matters that are listed in the Magistrates' Court and are to be dealt with following the imposition of this sentence, and they include charges of unlicensed driving and other driving matters relating to offending October 2015; obtaining property by deception, relating to incidents in December 2015; and two charges of theft of a motor vehicle that arose in August and September of 2016.
46 You are still in a relationship with Blayne Devisser. You had been in a relationship with her for approximately five to six months prior to this offending. She has a three-year-old, Ruby, and is currently living Benalla. Upon your ultimate release, it is intended that you will go and live with her in Benalla and continue your relationship together.
47 Your sister Janelle has indicated that she is supportive of this move, and she will continue to support you upon your eventual release.
48 I noted from the certificates that have been produced to the court that you have spent your time productively in custody, undertaking some education and work-related programs. It is your intention to pursue a heavy diesel mechanic's course and you have expressed a desire to complete an apprenticeship. I also note that you have completed one alcohol and drug-related program through Caraniche, which is an important step towards addressing your underlying offending behaviours.
49 In sentencing you, I have had regard to the early plea of guilty, entered at the earliest opportunity. Your plea of guilty has utilitarian value. It is indicative of some remorse on your behalf. It has also meant that you have facilitated justice. In your favour, I have taken into account your cooperation with the police, your full admissions and your acceptance that what you did on this occasion was wrong.
50 I have also had regard to the fact in relation to the driving charge, that you made admissions for that offending, and without those admissions you would not otherwise have been able to be charged by police.
51 You do not have a prior criminal history. You are a person who is still youthful, and there is a real need for sentence to promote your rehabilitation.
52 Overall, I consider, having regard to your post-offence behaviour that you do have good prospects of rehabilitation; that you do respond well to structure, but obviously for the future, in order to promote your prospects for rehabilitation and also to offer the best protection for the community, there is a need for your reintegration back into the community to be carefully thought through, and you will require real support upon your release from custody in order to obtain the goals that you now say are your personal goals.
53 Overall, having regard to the serious gravity of the offending, the fact that this was such a violent armed robbery in company with another, and the fact that it was so terrifying for the victims, with real consequences for them, I have come to the view that the only appropriate sentence is a Youth Justice Centre Order. You were considered suitable for a Community Correction Order, but ultimately I consider in order to mark the seriousness of the offending that only a Youth Justice Centre Order is appropriate.
54 I make the following formal orders. Could you please stand, Mr Matthews?
55 In relation to the common assault, Charge 1, you will be convicted and placed on a Youth Justice Centre Order for three months.
56 In relation to Charge 2, the armed robbery, convicted and placed on a Youth Justice Centre Order for two years and six months.
57 In relation to Charge 3, the theft, you will be convicted and sentenced to seven days on a Youth Justice Centre Order.
58 All those sentences are concurrent, so the total effective sentence is two years and six months Youth Justice Centre Order on the indictment.
59 In relation to Summary Charge 6, drive in a speed dangerous, you will be convicted and sentenced to seven days' Youth Justice Centre Order.
60 Upon conviction in respect to Charge 2, the armed robbery and Summary Charge 6, the drive speed dangerous, all licenses that you hold are now cancelled and you are disqualified from driving for a period of two years.
61 It will be noted on the court records pursuant to s.18(4) of the Sentencing Act, you have undertaken 176 pre-sentence detention.
62 I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty, I would have imposed a prison term to be served in adult custody of three-and-a-half years with a minimum of two years, and I make the disposal orders sought.
63 I think that covers everything.
64 MS GUESDON: Yes, Your Honour.
65 MS HARTNETT: Thank you, Your Honour.
66 HER HONOUR: Yes, all right. There is the disposal order that has been signed.
67 Mr Matthews, in effect what the outcome is, you have got a total effective sentence of two years and six months, to be served in a Youth Justice Centre, and it is now a matter for the Youth Parole Board to determine your release and the conditions of your release. I have no control over that, all right? But the fact that you have spent 176 days in detention already, is factored into the sentence, and that is taken into account, all right?
68 We can adjourn.
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