Director of Public Prosecutions v McCabe-Horne

[2019] VCC 716

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00160
CR-19-00163
Indictment No. C1912520

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN MCCABE-HORNE

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2019
DATE OF SENTENCE:	17 May 2019
CASE MAY BE CITED AS:	DPP v McCabe-Horne
MEDIUM NEUTRAL CITATION:	[2019] VCC 716

REASONS FOR SENTENCE
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Subject:  Attempted armed robbery X 2, criminal damage and possess drug.  Related summary offence of offending whilst on bail.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire	Office of Public Prosecutions
For Accused McCabe-Horne	Mr M. Reardon	VLA

HIS HONOUR:

1Dylan McCabe-Horne, on Wednesday of this week you pleaded guilty to  two charges of attempted armed robbery; one charge of criminal damage; and one charge of possession of a drug of dependence. Those four charges were actually laid on the indictment. You also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail. That related to the commission of the second attempted armed robbery. The maximum penalties are correctly set out in the agreed prosecution summary, so I will not restate them now.

2You were born on 22 July 1992. You are 26 years of age. You have admitted a relatively short criminal history of no great significance to my task.

3The matter was opened to me on Wednesday of this week by Ms Maguire, who appeared on behalf of the Director of Public Prosecutions.  She opened in accordance with a written opening that was dated 16 April 2019. That document was actually tendered on the plea and marked as Exhibit A.  Your counsel,
Mr Reardon, told me that with the exception of paragraph 11, that this was an agreed factual statement.  The issue that he had in relation to paragraph 11 was as to the relevance of that material.  I made clear that I would have no regard to that portion of the summary, and I will not.

4As the summary is therefore an agreed statement, I see no need then to set out the full factual basis of sentencing in my reasons. It is contained in that agreed document and I will not stray beyond the agreed facts. The only exception is this, that I will have regard to the references of the victims in their respective written statements as to the immediate impact of the crime. The prosecutor invited me to do that in the absence of there being formal victim impact statements here and there was no issue taken by your counsel on that score.

5As you know, you attempted to rob a taxi driver in the city.  This was on the evening of 24 October of last year. The offence occurred at around 10.38 pm. You were not inside the taxi but, rather, had approached it from the outside and committed the offence in that setting. You have leant in the open window, holding a bottle in your left hand and made the demand.  The taxi driver closed the window and you persisted, as the summary makes clear. You were apprehended by the police that night and you were interviewed.  Amongst other things, you told police that you went out with the intention to commit crimes but not armed robbery. You were bailed.

6A few days later, on 1 November at around 2 am, you attempted to rob a staff member at a 7-Eleven in Brunswick East.  Again you produced a bottle and made demands. When unsuccessful in that regard, you then caused some damage to the staff member's parked car. Hence Charge 3, criminal damage. You were arrested that morning, interviewed and have been in custody since. As to Charge 4, you produced the cannabis to the police during a break in the interview, saying that you had removed it from your underpants. It was a small quantity and there is no reason at all for me to think it is in any way connected with trafficking. Indeed, I am satisfied to the required degree that it was not, and so the lower penalty provision applies. I will barely mention that offence again. Of course it is the least of your concerns.

7You made full admissions in relation to each of these attempted armed robberies.  I am not going to set them all out in my sentencing remarks.  I have read the interviews a second time.  In the interview for the second offence you described how you were not feeling at all well (see Question 31), how you were in a lot of trouble with the earlier offence, that you had lost a friend and that you had also in a way given up on life (see 137 to 139). You pleaded guilty at the earliest opportunity and whilst you were not co-operative at the scene of each arrest, you then sobered up to some extent and in terms of the interview you cooperated quite fully with police thereafter.

8I have only very briefly summarised the factual statement but as I have said, I will sentence in accordance with the full agreed factual statement.

Impact.

9As I have indicated, there were no victim impact statements here but it is obvious that in each case this was a frightening event. The written statements of the victims deal with the immediate feelings of fear or emotion or of being shaken. You wanted to intimidate each victim into complying with your demand for money and, of course, you succeeded in intimidating, but not in getting money.  I am not going to speculate about there being any long term impacts here, I cannot do that, but I have no doubt at all that each victim was frightened or shaken by your act and demand.

In Mitigation

10Your counsel, Mr Reardon, had prepared some very high quality written submissions on the plea.  They were marked as Exhibit 1.  As I said the other day, you were lucky to have Mr Reardon represent you.  He conducted a most thorough plea on your behalf.  As you observed, I raised a number of matters in the course of the plea and he acquitted himself admirably.

11He took me to your background. He tendered a report from Mr Cummins as well as an old report from a paediatric neurologist with the Western Australian Department of Health.  There was a report from Dr Mitchell, a psychologist, and two course certificates relating to completed prison courses. Also two references from your siblings and, finally, two drug screens. He made submissions as to the objective seriousness of the offending.

12In addition he relied upon:

·Your co-operation with the police in the course of the two police interviews;

·Your early guilty plea;

·The presence of some remorse as implied by that plea;

·The absence of any serious criminal history;

·He argued that you had reasonable prospects into the future;

·He argued that the case of Verdins was operative here with some reduction in your moral culpability, and some increased burden and risk of deterioration in custody. He expanded that submission to include some moderation of general deterrence in this case.

13Mr Reardon was arguing for a combination type sentence but he was not suggesting that your release from custody would be immediate or even imminent. He conceded the need for some further time in custody over and above your existing pre-sentence detention with provision for your ultimate release into the community on a Community Corrections Order.

Prosecution

14The Director of Public Prosecutions conceded, through Ms Maguire, that such a disposition would be open to the Court.  Whilst of course I pay regard to that submission, it does not bind me to a particular course.  That is because I have to exercise my own sentencing discretion.  Ms Maguire argued that this was plainly serious offending but that the objective gravity was quite low with little by way of sophistication or planning. You had pleaded guilty at the earliest of opportunities and had no particularly relevant prior history. She conceded that you needed some level of treatment and counselling and that your rehabilitation would very much hinge on that occurring. It could be provided for though, either by way of a combination type order with your ultimate certain release on to a Community Corrections Order or with the fixing of a non-parole period providing for the possibility of structured release on parole. The Prosecution argued that this was soft target attempted armed robbery in each case, with only limited remorse and insight on display.  They argued that this sort of crime was prevalent and weight needed to be given to general deterrence. The prosecution did not accept the Verdins Limb 1 and 3 application here, but was seemingly ambivalent as to the application of the fifth and the sixth limbs.  That was a matter for the Court.  Well, it always is, if I might say so.  As with all these things, I am not bound by any submissions made by either party either as to matters in mitigation or as to the ultimate disposition of the matter. I have to exercise my own sentencing discretion.

Background

15I turn then to your background.  Your background is more than adequately set out in the report of Mr Cummins as well as in the written outline and the oral submissions that supplemented that material. I have no reason at all not to accept that personal background and it seems to me then that there is very limited utility in my sitting up here, rehashing to you all of your background in these reasons, reasons which will be quite lengthy enough already.

16So I will set out only a brief summary. You were born in Western Australia on 22 July 1992. You are 26 years of age. It was not a particularly pleasant or happy childhood. There was a level of dysfunction at play and I take into account as far as I am able to, the problematic early life that had been thrust upon you. It was not of your choosing and no doubt it shaped who you have become. It probably also has had some real sizeable role in shaping your attitude to alcohol.

17You were one of three children and your mother was a drug user who left the family home when you were nine or 10.  Other than for a brief period where you lived with her in unsatisfactory circumstances amidst drug use by her and violence from her new partner when you were around 13, you saw her only very infrequently for the next several years but you learnt after the event that she had in fact been trying to resume contact for some years and had been rebuffed by your father. Your father was a fly in, fly out worker on the oil rigs, hence often not at home and a heavy drinker when he was at home and hardly providing a good example to an impressionable child and then teenager. He introduced you to alcohol when you were a little bit older.  When he was not at home your aunt and grandmother looked after you and your siblings. You lost contact with your father when you disclosed your sexuality to him when you were 18. You resumed contact with your mother at about that same time and that relationship continues and she is supportive of you. There are two half siblings, each younger than you. You had some clear difficulties at school, probably owing to the mild intellectual handicap and the dyspraxia spoken of in the report of
Dr Peter Walsh.  To your credit though, you completed the equivalent of
Year 12, VCAL. Thereafter there was a fairly patchy employment record for a few years, but from the age of 20 you worked at Woolworths in Perth and did well there. So there was at that point at least, stability in your employment for five or perhaps six years. You were getting on well with your mother and had some stability in your life.

18You have had limited intimate relationships and there is one serious act of violence that has been perpetrated against you when you were a teenager, for which you really have never had counselling.

19You had serious issues with alcohol for many years and you have been told as much by a number of people, including your mother, to no avail. Other drugs seem not to have been massively problematic. You moved to Melbourne in February 2018 and transferred jobs to a local Woolworths but you were only then rostered on for 10 hours a week.  So you had less work, more time on your hands and obviously less money. The transfer to Melbourne was not a success. You were living in a share house.  You knew few, if any, people, you were not working as many hours as you would have liked and you were drinking heavily, if not very heavily. You were not in great shape and there were numerous emergency department admissions. In the police interviews you speak of the downturn in your life and the sense of hopelessness and deterioration. In fact you have moved away from Western Australia to try to get a fresh start as you felt that your life was going downhill over there.  Well, maybe it was, but it ran off the rails here. You were labouring under a major depressive disorder with symptoms of anxiety disorder by mid-June 2018, as the report of Dr Mitchell makes plain.  Jumping ahead, you have been in custody since November of last year, and you receive no visitors. You are working in prison and you are doing such courses as you can, and those are positive matters.

20As I have said a moment ago, alcohol has obviously been a major problem for many years. You have never sought any treatment (other than under one bail order many years ago) and you still have relatively limited insight in that regard but that is probably developing. After all, you are in prison for the first time and you must have a fair sense of the role that alcohol has had in that unfortunate development in your life.

21You have a criminal history. It is not overly long and it does not involve anything nearly as serious as this offending. Mainly fines have been imposed. Certainly no imprisonment in the past or court ordered supervision other than that one supervised bail release that Mr Reardon told me about. So the criminal history is of no significance to my task at all other than to display the absence of past serious offending and to suggest that in the past there have been offences committed whilst you have been affected by alcohol. Your counsel concedes that to be so.

22You have been in custody now for 197 days and, as I have said, you have never been imprisoned before, so this is your first taste.

Mr Cummins and Dr Mitchell

23I have read and take into account the reports of Mr Cummins and Dr Mitchell. Your counsel argued in his written outline that the first, the fifth and the sixth principles from the case of Verdins were engaged here. He expanded that in the course of oral submissions to embrace the third limb in that case. That decision which you have heard discussed is a Court of Appeal case dealing with the way in which a variety of mental impairments, existing either at the time of the offence, or sentence, or both, can be taken into account by a court. I should say that is a very broad and simplistic description of that case but it will do for present purposes.

24I have said already that I accept the opinion of Dr Mitchell. He saw you once in June 2018, so some months prior to this offending. You were obviously not then traveling well at all and that is why you sought out assistance from him.

25Mr Cummins provides a variety of opinions in his report based on his assessment conducted in March of this year.

26Before going to that report let me reflect on a comment made by King J in the case of Miller 2015 [VSC] 180 when she was passing sentence in the Supreme Court in that case in 2015.  Her remarks were cited in the case of O’Neill 2015 [VSCA] 325, which I have had some reason to revisit owing to the submissions made in this case.

27King J said the following:

“….I have found over time that I am less and less satisfied with reports prepared by forensic psychologists who have often spent an hour or less, with the offender before producing a lengthy report that purports to address quite particularly, and directly, the various limbs of Verdins, usually relating to either the moral culpability or the sentence weighing more heavily upon the offender”.

28Often enough, both before and since then, the Court of Appeal has counselled judges to apply some level of real rigour in the evaluation of the evidence placed before the court in support of these Verdins type claims. The Court of Appeal has also often enough commented on the most unsatisfactory nature of some of the reports actually provided to the courts.

29Now we seem to have entered an age where there are an increasing and alarming number of experts who routinely conduct the entire assessment using a video link and who have therefore spent no time at all in the actual presence of the accused. That is what we have in this case. Mr Cummins did the whole assessment on one date in March by video link.

30I wonder out aloud if anyone would dare provide such a report to the Supreme Court?  I need not wonder about how King J might react to this new trend, though from the tenor of her remarks in Miller, one can have an informed hunch.  Anyway, that is by the by.  Let me state my own attitude to this approach.

31Standards have slipped to such a high degree in this area.  I hope I never need to mention this again. It seems incredible to me that any psychologist would approach their task in this way but this is the unfortunate developing trend that I have seen, and one that as far as I am concerned must stop and the courts must stop it.  I have noticed a number of psychologists routinely using the video link. No doubt it is difficult visiting people in prison. It takes a good deal of time getting to a prison and then getting in, seeing the subject and then getting out of prison and back to the office.  Of course it is not convenient. I understand all of that, but there has to be some level below which an expert will not sink. We, as judges, are expected to conduct a rigorous examination of these matters. Surely we should expect a level of rigour from the experts.  At least get into the same room with an accused if you are going to offer up an opinion to a court, and if you cannot afford the time and/or effort to do that, just refuse the engagement. As I have said in the course of the plea, I have had experts in other cases (for instance Mr David Ball) spell out in evidence before me that a video link is not a reliable or valid method for a forensic psychological report.  So too have other experts expressed serious concerns as to this style of assessment.  As far as I am concerned it should not be occurring. I have conveyed that view as directly as I can to the Victorian Legal Aid Commission in the course of this plea and in these very reasons.  I do not know whether it is a cost cutting measure by VLA, I suspect it is, and that that is the thing driving the experts into this unfortunate trend, or whether it is laziness on the part of the experts or a combination of the two, but this practice must stop. If it is the position that it is driven by costing issues, then there will be a need for Victoria Legal Aid to revisit the issue of funding to adequately remunerate the expert to actually physically attend at prison. If this practice continues I will insist that every expert who has done the assessment by video-link be called on the plea.

32Now, I have got that off my chest.  It is of course not your fault, Mr McCabe-Horne, that the assessment has been done in this fashion,  So what I do is I put aside what is my general criticism of this style of assessment process and turn, rather, to what Mr Cummins says in your case.

33Your counsel relies upon some reduction in your culpability owing to the major depressive disorder, with Mr Cummins stating that such a condition would be likely to have some adverse impact on your perception, judgment and reasoning ability. Mr Cummins described the condition as being undiagnosed and untreated. That seems not to be so. Dr Mitchell diagnosed you and provided advice to you and referral to someone who bulk billed, and Mr Cummins refers to that in his report.  He had Dr Mitchell's report. That was in June 2018 that you saw Mitchell, and it is not suggested that you took up that treatment.

Mr Cummins saw you that once in March of this year and provides that opinion as to the likely impact of a major depressive disorder said to have existed at the time of the offending in October and November of last year. What then of the impact of alcohol use and the obvious disinhibiting effect of alcohol at the time? What role did that have to play? Well, obviously a very substantial role indeed. You had drunk a very large amount on each occasion, you estimated
12 stubbies of cider. Might it be possible that the depressive disorder had no role to play at all in the commission of the offences, so no realistic connection at all? That seems easily possible on the materials placed before me. There are plenty of people who are disinhibited by alcohol who make very poor decisions and/or do things that they normally would not dream of doing.  The offences are themselves not mysterious in what you were seeking to achieve. You spelt it out in your interview and it was obvious enough on the night. You wanted money. You were obviously significantly affected by alcohol and you wanted money for alcohol.  That is not mitigatory.  You also, according to Mr Cummins, likely laboured under a borderline personality disorder, and that is characterised by, amongst other things, he says, 'marked impulsivity'. You describe to Cummins, being impulsive throughout your life. Well, that kind of condition, that is a borderline personality disorder, does not even attract any Verdins type reduction, as I understand it. That is the way I construe the case of O’Neill. See paragraph 71 and 85 of that case, but even if I happen to be wrong in that view, what role did that Borderline Personality Disorder impulsivity have to play here? A large role, little or none at all? Who knows? It would be pure speculation. Anyway, as I read the case of O’Neill, in my judgment it is not even a condition which would fulfil the threshold criteria for the application of Verdins. See
para 85.

34It seems to me then that it is mere speculation to consider the adverse impacts on your perception, judgement and reasoning ability flowing from a major depressive disorder when there are so many other non-Verdins type factors at play here, including very significant disinhibition brought about by alcohol and a shortage of money. Also the explanations that you give in the interview and to Mr Cummins as to why you did what you did.

35I do not accept on the balance of probabilities that there is any realistic connection, so there is no Verdins reduction in culpability here, nor any reduction in the weight to give to general deterrence, nor do I see anything in the reports spelling out any reason to think that on a Verdins basis, your custodial burden would be greatly increased. Your counsel advised me that you are feeling better and more stable at the moment, though it was a changeable position. You tell Mr Cummins that you are feeling more settled. You are working full time in the prison, which is a big positive. You had been receiving some useful treatment from a psychologist earlier in the remand period and have done courses. I am still prepared to give the fifth limb some modest weight owing to the psychological vulnerability commented on and the experiences that you have had already, including the reported suicide attempt earlier in the year.  Again, if I may say so, that sort of matter, for which there would presumably be some documentation, is the sort of thing that should be further explored by the author, given the weight that he attaches to your report of that event.

36As to the sixth limb, there is just no material before me which satisfies me on the balance of probabilities that there is a serious risk of imprisonment having a significant adverse effect on your mental health. The report does not rise to that level. There were serious issues over the Christmas period or just after Christmas with that suicide attempt. The particular reasons underpinning that attempt were explained to me.  You have had treatment since and you are more settled. I am not able to infer from those past issues in prison that moving forward there is likely to be the serious risk of significant adverse effect on your mental health.

37I therefore do not accept that the first, third or sixth limbs have any application here but will give some modest weight to the fifth limb.

38Dr Mitchell saw you in the lead up to the relevant timeframe. You were plainly not travelling well. You had a major depressive disorder. I do not doubt the diagnosis. Rather, I am not satisfied of the realistic connection to the offending. Mr Cummins’ report is still of use in a variety of ways, and of course the
non-Verdins matters that I have commented on can still be given some weight in my task as the case of O’Neill makes plain, and I give them some weight.

39The report also goes into more detail as to your background and gives me a better sense of who you are.  It goes into your early life, some of the problems there, and I take into account, as I have said, the unhappy and dysfunctional aspects of your life as far as I am able to.  I take into account also his risk assessment and what he says of your level of functioning and the need for treatment.

Additional Increased Burden Over and Above the Fifth Limb Allowance

40I have no reason to think that being in custody is easy for you. In fact quite the opposite. As I have said, it is your first taste of prison and is experienced in a State where you have no friends or relatives and hence no visitors. That cannot be easy.

41Undoubtedly there is an increased burden flowing from that fact which I do believe I can take into account in addition to the fifth limb Verdins allowance arising from your psychological vulnerability that I have already commented on.

42You are at least talking on the phone with your older sister and your younger brother, but that is not the same as having a personal visit. As I said a moment ago, your counsel told me that you are feeling better and more stable at the moment but that it varies from day to day. I note also the issue of the past intellectual disability, though happily you seem to be functioning at a better level.  Your practical skills have in a way boosted your overall level of functioning. I note from Mr Cummins’ report also that you seem not to fully understand the likely impact of your offending upon your victims and still have quite limited insight into some of your own problems, but you are a work in progress, I accept that.

Guilty Plea 

43I turn to some of the other matters raised in mitigation.  You have pleaded guilty at the earliest stage. You have facilitated the course of justice.  You have taken responsibility for your crimes. The victims in this case have both been spared the experience of giving evidence and the community has been saved the time, cost and effort associated with a contested hearing. There is a utilitarian benefit in pleading guilty and I take those various matters into account in mitigation. Also, of course, the admissions that you made, especially in relation to the cannabis where you actually provided the case against yourself.

Remorse

44A guilty plea is often indicative of some level of remorse but that is not always the position.  Your guilty plea was entered at the earliest stage. I have some expressions of insight into the position of your victims in the interviews conducted by the police.  Mr Cummins saw you in March of this year and he does not suggest that you are fully remorseful or fixed with any great victim empathy here.  I do not know why you are not but you seem to have a pretty casual attitude to the experience of your victims, as set out in paragraph 34 of his report.  I am, though, prepared to find, as your counsel suggests I should, that you do have some remorse here, as implied from your guilty plea, and I do take that into account in your favour.

Rehabilitation

45What then of your prospects of rehabilitation into the future?  It is always a difficult question.  Your counsel suggests that those prospects of rehabilitation are reasonable. You are still quite young, with a very limited criminal history, and serving your first sentence in difficult circumstances. When I look at some of the dysfunction in your early life, you have not actually done too badly, holding down a job for the years that you did. These offences obviously represent a sizeable escalation in your offending. There is, Mr Reardon argues, some developing insight into the need for treatment.  You have been doing courses in custody and you have been working.  You have been there since November of last year and there are the two clean drug screens spoken of.

46There is the risk assessment in Mr Cummins’ report and clear indications of the need for ongoing treatment. There is little by way of structure outside prison for you.  No home, little by way of friendships and no family structure in this State, but I cannot use prison to warehouse you until there are more pleasing living arrangements in place.  I have to pass an appropriate sentence, one proportionate to the gravity of the crimes.

47You have had serious issues with alcohol over many years and have not engaged in treatment in the past.  You committed the second attempted armed robbery whilst on bail for the first, which of course is a bit of a worry, but it was a tight timeframe and one where you were obviously not faring well. Alcohol excess and the disinhibition brought about by that over consumption was plainly the driving force here. I have no doubt of that at all.

48It is a bit hard not to be guarded here but I am prepared to find that you do have quite reasonable prospects of rehabilitation.  That is subject to you desisting from future abuse of alcohol. That has been a serious issue for you and you have not ever addressed it meaningfully, and you still have a limited insight as to that fact but it seems to me to be developing.  I think you probably have reached a point now in your life where you know that you need some level of treatment.

General Remarks

49I take into account all of the submissions made by your counsel as well as by the prosecutor. I also take into account all the written exhibits which were filed on the plea.  I have read them all again since Wednesday of this week. In fact the letters from your brother and sister are actually quite poignant. You are obviously a valued family member and your sister’s letter is a bit sad.  It demonstrates the way in which one’s early background cannot just be so easily shrugged off by her or, for that matter, by you.

50I turn now then to some general remarks about your offending.  As you may or may not appreciate, I must have regard to the gravity of the offences before the court.  Your counsel concedes that this was serious enough offending, and that is a sensible concession given that we are dealing with attempted armed robberies.  Soft target attempted armed robberies on vulnerable, lone victims at night.  That is what we are dealing with.  A taxi driver in one instance, and a 7-Eleven attendant in the other.  The Court of Appeal in this State has said that there is not too much mileage in endeavouring to apply tags or labels to identify where particular offending sits on the spectrum of offence seriousness. See the case of Weybury.  However, as part of my task I have to consider the nature and the gravity of the offending, so it is unavoidable in a way, and counsel continue in the course of pleas conducted before the court, to employ tags or labels or descriptors.  What is more important to consider is what you did, not the descriptor or, for that matter, the absence of aggravating features.  Rather, what did you do?  What you did was serious enough, you know that.  Your counsel submits, for the reasons set out in paragraph 30, that the offending falls at what he says is the, ‘lower end’, of the objective seriousness for the crime of attempted armed robbery.  Do not misunderstand that submission.  He was not saying that the offending was not serious. He argues, though, that it was disorganised and impulsive, short-lived and force was threatened rather than used with a weapon perhaps less concerning than a knife or syringe or a gun, that unlike some cases, there was far less by way of actual physical threat or physical presence, given that you were outside the taxi and not a long way into the 7-Eleven.  You were not seated in the taxi alongside or behind the victim in an enclosed space or right in the face of the 7-Eleven worker, and no doubt all of that is true.  

51I accept there was very little planning or sophistication here, that the crimes do not suggest much, if any planning.  The offending was relatively spontaneous with little, if any, consideration to apprehension or avoiding it, and that is probably all owing to your disinhibition.  You were drunk, very drunk, but that is not mitigatory.  You were not wearing any disguise at all.  Happily, there was no actual force employed. The weapon you used, I find probably would be less dreadful for a victim to behold than a knife or a syringe or a gun.  So I do accept that this, in each instance, was a low level example of the offence of attempted armed robbery, but it was still serious offending. It is no comfort to the victim to learn that you have committed what may be described in the safety of the Court, as a low level example of the offence upon them. It would not feel like that to the poor victim as his ‘workplace’ was in each case intruded upon by a drunk and angry man wielding a bottle and making a demand. Taxi drivers are, by the very nature of their occupation, vulnerable. They work one up. So too lone attendants in places such as 7-Elevens. They must be protected and the Courts must protect them. The fact is in each case the weapon was produced by you.  A bottle. It was not a matter of chance. The production of the bottle was designed to imply the threat of force in the event there was non-compliance or resistance. Very many completed soft target armed robberies do not descend to actual force being employed. These attempts didn’t either.

52The absence of aggravating features is not a matter in mitigation. It does not alter the actual facts that I have to sentence upon. These were still serious offences, though plainly they fall at a relatively low level. They are attempts, but often enough there is little distinction in terms of the conduct between an attempt and a completed offence. Very often the demand is made, as it was here, but it is then complied with.  Well, here it was not, but it was not for want of trying. Of course I do not lose sight of the fact that there is the lesser maximum penalty at play because these are attempts.

Current Sentencing Practice and Offence Gravity

53I take into account, as I must, current sentencing practices, and that is not a single controlling factor. The sentencing snapshot for attempted armed robbery (No.36) is very, very dated and of no use to my task at all.

54I have also considered the SACStat online data for attempted armed robbery which is far more up to date.  I raised that data in the course of the plea to put your counsel on notice but again his thoroughness was on display. He had already accessed that material himself.  It relates to data from July 2013 to
30 June 2018. The most common sentence where imprisonment was selected was between one and two years but with a very sizeable band falling between two and three years. I have also considered the Judicial College of Victoria sentencing manual, which has an overview of sentences imposed for the crime of attempted armed robbery, at 32.15.2.5.1.  

55Every case is very different. So is every offender, and this sort of statistical material always has inherent limitations, as your counsel submitted. He was right; it does not descend to the individual detail of the acts or the background of the offender or stage of the plea. So none of the aggravating and mitigatory features are disclosed in the mere numbers.  Instances of other sentences being imposed in other cases also have obvious limitations. There are always differences in conduct, always differences in background and there is never one correct sentence. What I have to do is to pass an appropriate sentence in your case. So other cases are not precedents, nor do the statistics provide the answer to my task.

56This was serious offending. Attempted armed robbery is a serious criminal offence punishable by a 20 year maximum term of imprisonment. These were still very serious criminal acts even though they were attempts, and even though I judge that they fall at a lower level of objective seriousness. This sort of offending must be strongly denounced. Soft target attempted armed robberies and completed offences, for that matter, are common enough. People working in these exposed positions, either in late night retail outlets or in taxis, are vulnerable and they must be protected. The second attempted armed robbery occurred whilst on bail for the first, within days of being bailed and appearing at Court. Section 16(3C) of the Sentencing Act applies to displace the usual presumption of concurrency, though there is no deed to find exceptional circumstances to avoid the operation of that provision and totality obviously still applies.

57I have barely mentioned the criminal damage in these reasons to date. It is obviously far less serious than the attempted armed robberies, and the cannabis possession is scarcely worth mentioning again. It is the least of your problems involving, as it does, a small quantity for personal use and a quantity which you actually volunteered. That admission is obviously very important. Who knows if the police would even have found it? So your admissions are very powerful in that matter and must be given extra and demonstrable weight. The summary offence merely recognises that the commission of the second attempted armed robbery occurred whilst on bail for the first.

58Sentencing is never particularly easy.  It always involves a balancing of a number of sentencing purposes that are to be found in the Sentencing Act.  It is not all about you or your needs or your wishes.  I am not saying those things are unimportant.  Of course they are not. Rehabilitation is important, undoubtedly, and I pay regard to that purpose, but it is one purpose of sentencing, not the only purpose. I have announced already that I believe you have quite reasonable prospects of rehabilitation.

59I have to pay regard to the offence maximums.  Well, as you heard, it is
20 years' imprisonment for the attempted armed robberies. That surely spells out to you how seriously attempted armed robbery is viewed by the Parliament.

60I have regard to the impact of your crimes.

61I have to punish you justly and proportionately and I must also denounce this serious conduct.

62I have to give weight to deterrence, both specific and general. Specific deterrence must be given some weight here, given the nature of the offending and the fact that the second offence occurred whilst you were on bail. I must deter you from ever committing crimes such as these in the future. 

63I must also adequately recognise the need for community protection. It must also be given some weight here in my task. It stands to reason, though, that I will not give the sort of weight I would otherwise give to specific deterrence or community protection that I would give in a different setting, for instance, in the case of an offender who had a more significant or relevant prior criminal history or one who had not taken past chances offered by the Courts. That is not the position here at all.  You have nothing of relevance in your past history at all, so I believe there can be some moderation of these purposes but they are still obviously relevant.

64Your counsel concedes that general deterrence is an important sentencing purpose in relation to the attempted armed robberies, and of course it is.  The Courts must send a strong message to the many would be offenders who might be tempted to engage in this sort of conduct.

65Like-minded potential offenders must understand that serious conduct such as yours will be met with stern punishment.

66Prison is a disposition of last resort. A court only selects imprisonment when there is simply no other option available. That is obvious enough. It is also the law.

67Your counsel argues that it is open to eventually release you on to a Community Corrections Order. He submits that a combination type disposition such as that, prison and a Community Corrections Order, is open to me here. That such an outcome would achieve all the purposes of sentencing. The prosecution agree that such an outcome falls within my available sentencing discretion.

68I do not believe that such an outcome is open to me in the sound exercise of my discretion in this case. Here, I have serious offending targeting two separate victims on separate occasions, the second whilst on bail for the first. I do not believe that a combination type disposition would achieve all the purposes of sentencing, including the need to punish and to deter you, and more significantly, to deter others.  I believe the only appropriate disposition is in each case a term of imprisonment with an appropriate measure of cumulation.  It must be meaningful cumulation as they were quite separate acts on different occasions with separate victims and no doubt separate impact.

69I will provide for your possible release by fixing a non-parole period. I must act on the basis that you will serve every day of the head sentence that l will shortly pronounce. That is because whether or not you are released on parole is entirely in the hands of the Adult Parole Board. It has nothing at all to do with me.  The Adult Parole Board will, incidentally, be in a vastly superior position to assess your readiness for release closer to that point in time. Your counsel was urging me to have you released on to a Community Corrections Order some time, if not quite some time, down the track. That would have me merely guessing at this point as to any structures in place.  It would set you up for failure. The Adult Parole Board will be in a far better position to make that judgment. In any event, I do not believe I can even structure a sentence permitting a combination type disposition given the limits and the ceiling involved there.

Totality 

70I have taken into account the principle of totality of sentence. I have looked at the sentences and the effect of the sentences that I am about to impose to guard against imposing a crushing outcome and to ensure that the sentences I am imposing are commensurate with the overall gravity of your crimes. As I have said though, there must be meaningful cumulation here to recognise quite separate crimes committed upon these two quite separate victims. Plainly though, there cannot be total cumulation, which is what would flow if I did not make an order otherwise directing under the provisions of s.16(3C).

Ancillary Orders

71Let me deal with the ancillary orders. 

72Firstly, there is an application for forensic sample. None of these orders are opposed. Indeed, they are all consented to. There is an application for a forensic procedure to obtain a sample from you. There is no opposition to that and I will make that order. Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that I am justified in making that order owing to the seriousness of the offending, the existence of the prior convictions, the fact that the order is by consent, and that I judge it to be in the public interest. What we are dealing with here then, Mr McCabe, a swab will be run around your mouth to obtain a sample of DNA. It is not a particularly invasive process and I have not authorised a blood sample, which of course is more invasive. I have still got to tell you though, that the authorities can use reasonable force to obtain the mouth scraping, but it should not be a problem for you and no doubt if it presented some problems the authorities would be back before me, making application for a blood sample, which to this point I have not authorised. I only authorise the least invasive means. So I have made that order.

Forfeiture Order

73Secondly, there is a forfeiture order under the provisions of s.33 of the Confiscations Act.  This relates to some bits and pieces.  A broken bottle and a smashed bottle and a couple of items of - make sure they are correctly on the - a blue T-shirt and a pair of socks and a pair of shoes.  Are they meant to be there or have they been - - -?

74MS MAGUIRE:  No.  They were removed, Your Honour.  An updated version
of - - -

75HIS HONOUR:  Yes, I thought there was an updated version of that.

76MS MAGUIRE:  Yes, Your Honour.

77HIS HONOUR:  Have you got a version of it there or not?  So the amended version seems to have the same schedule.  Anyway, what should be on the schedules?  Is it just the bottles, is it?

78MS MAGUIRE:  Yes, Your Honour.

79HIS HONOUR:  So not the T-shirt, not the socks, not the shoes?

80MS MAGUIRE:  No, Your Honour.

81HIS HONOUR:  All right, I will delete those from the - I will delete those then from the order.

82MS MAGUIRE:  Thank you, Your Honour.

83MR REARDON:  If it please the court.

84HIS HONOUR: Yes, so the updated schedule then will be the broken bottle of (indistinct) and the smashed bottle. So I have signed that order and again there is no opposition. It is consented to and I am satisfied that the conditions to make that order apply here and pursuant to s.33 of the Confiscation Act I order that the property referred to in the schedule be forfeited to the minister.

Disposal Order

85The final matter is the disposal order and that simply relates to the cannabis, and of course you are not getting that back. So I am satisfied that the order is appropriate to make. I order, pursuant to s.78 of the Confiscation Act the forfeiture of that property and I direct that it be handled in the manner contemplated by the order which I have signed.  So those various ancillary orders have been made.

86I am sorry to have taken so long going through these matters.  So, Mr McCabe-Horne, if you could just stand up now, please, and I will pass sentence upon you.

Sentence

87On Charge 1, which is the attempted armed robbery of the taxi driver, you are convicted and sentenced to 20 months' imprisonment.

88On Charge 2, attempted armed robbery of the 7-Eleven staff member, you are convicted and sentenced to 20 months' imprisonment.

89On Charge 3, criminal damage, you are convicted and sentenced to seven days' imprisonment.

90On Charge 4, possession of cannabis, I convict you and fine you the sum of $150.

Summary Offence

91On the related summary offence of committing an indictable offence whilst on bail, I convict and sentence you to seven days' imprisonment.

92The sentence then on Charge 1 I will make the base sentence, that is 20 months' imprisonment.

Cumulation

93I have to then consider s.16 (3C) and its application here.  If I said nothing, the 20 months imposed on Charge 2 would then be served cumulatively, or that is on top of the other 20 months' sentence, and that cannot be right.  That would not pay adequate regard to totality of sentence.  I am going to otherwise direct to this degree.  I direct that eight months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.  It follows then that
12 months of that sentence will be served concurrently. The other prison terms that I have imposed will be served concurrently upon the base and the part concurrent sentence. 

Total Effective Sentence

94If you are not necessarily following the mathematics of all of this, let me make it clear to you, the total effective sentence that I am imposing, it is a total effective sentence of 28 months or two years and four months' imprisonment.

Non-Parole Period.

95I fix a period of 14 months during which you will not be eligible for release on parole.

Section 18 Pre-Sentence Detention.

96You have already served 197 days by way of pre-sentence detention, so you get credit for that, and that declaration will be entered into the records of the court.

Section 6AAA.

97And finally, I have told you already, I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to four years' imprisonment.  I would have fixed a non-parole period of two and a half years' imprisonment in that setting.  So that statement also is to be entered into the records of the court.

98Just grab a seat then for a moment.  I will see if there is anything else I need to do.  Are there any other matters that I have overlooked at all?

99MS MAGUIRE:  No, Your Honour.

100HIS HONOUR:  No, no.

101MR REARDON:  No, Your Honour.  If it please the court.

102

HIS HONOUR:  All right.  You will go down and see your client downstairs,

Mr Reardon?

103MR REARDON:  Yes, Your Honour.

104

HIS HONOUR:  All right.  Well, look, that completes the matter then.  So

Mr McCabe-Horne can go now with the officer downstairs and Mr Reardon will come down and see you downstairs, all right.

105ACCUSED:  Thank you, Your Honour.

106HIS HONOUR:  All right, thank you.

107MS MAGUIRE:  If Your Honour pleases.

108MR REARDON:  May it please the court.

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