Director of Public Prosecutions v McGowan
[2013] VCC 1618
•1 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00779
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM McGOWAN |
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JUDGE: | His Honour Judge Parsons | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2013 | |
DATE OF SENTENCE: | 1 November 2013 | |
CASE MAY BE CITED AS: | DPP v McGowan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1618 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O’Halloran | OPP |
| For the Accused | Ms J. Smith | Robert Stary & Associates |
HIS HONOUR:
1 You, Sam McGowan, have pleaded guilty before me to one count of attempted armed robbery and one count of theft. These crimes arise out of matters which were opened in some detail by the learned prosecutor and those matters are set out in Exhibit A. You were arrested and charged on 30 January 2013 and at the time of the offending you were aged 18. At committal mention the matter proceeded by way of straight hand-up-brief and you indicated then an intention to plead guilty. The matter was in due course listed and set down for hearing in the County Koori Court.
2 The facts giving rise to this offending began early in the morning of Saturday 26 January when you and two others, one co-offender aged 15 and the other aged 14, stole a vehicle from Melton West. Later that day you then with disguises and, in your case, being armed with a handsaw, attended a store, Coles Supermarket in Sunshine West. You and another jumped over the counter into a service kiosk area and confronted the attendant and ultimately you and the other person took the cash register which contained approximately $230 and also some packets of cigarettes. During this time your other co-offender, the third youth, was pointing the knife at other store attendants and customers and told them all to get down. All of this was revealed in the DVD footage which Mr O'Halloran showed to the court and it is an exhibit and marked as such.
3 Whilst this was happening, a male bystander who was outside the store and witnessing what was going on, obtained a long crowbar from his car parked nearby. He entered the store, confronted you and the other two, and when you ran at him he knocked you across the face with the crowbar and you were knocked to the ground and rendered unconscious. The other two co-accused then grabbed a store attendant and held their knives to his neck and they made their getaway. In that time you regained consciousness and also joined the other two. You all departed empty-handed, departing in the stolen vehicle.
4 As I say, the entire incident was captured on CCTV footage. The vehicle was found burned out later that day but you are not charged with anything to do with the destruction of the vehicle. On 30 January you were arrested with respect to this matter. With respect to your co-offenders, they each they each pleaded guilty to an additional charge of arson and false imprisonment and they were each sentenced to effective terms of 15 months in the Youth Justice Centre.
5 Following a conviction for an offence of theft, of course, I must suspend your licence and I will do so for a period of 12 months. Also, there is an application for the retention of a forensic sample which I will make, and a disposal order, and I have made both of those.
6 No impact statements were tendered in the matter, notwithstanding the opportunity was extended to each of the two victims as I understand it, or at least two victims, to make a victim impact statement but Mr O'Halloran said they declined to do so in the circumstances. Nevertheless, it is clear from the depositions and also the footage that we watched that those people inevitably suffered anxiety and I have no doubt that the events of that particular day will remain with them for a considerable period into the future.
7 Of course, as was pointed out by your counsel, there are a number of mitigating factors. You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to these charges, you were apprehended in the circumstances described, and it seems to me that you plea does indicate true remorse for your actions, and I bear in mind also the fact that you were significantly injured at the time as a result of being hit over the head with the wheel brace or similar.
8 I have been told something of your personal history and your circumstances. It emerged both as part of the sentencing conversation and also, of course, as it is reflected in the materials which have been made available to me in the various reports which are tendered on your behalf and also the extensive written submissions that were made on your behalf and which are marked as exhibits. Of course, during the sentencing conversation I was assisted by Uncle David Farrell and Uncle Graham Austin, and it became clear after some questioning from them that indeed Uncle Graham Austin was able to locate your Aboriginal family members in Melbourne, those people with whom you associated, and also of course it became clear that your father is a Torres Strait Islander and you have spent some time, albeit it a long time ago, in that area.
9 As I say, you are aged 18, the younger of two children. Your father's whereabouts are unknown, believed to be resident in the Torres Strait. Your parents separated when you were quite young. Your mother re-partnered and you have two stepbrothers. Although they are now separated, you report that you had a better relationship with your stepfather than your mother, whom you have not seen for some time. You have a good relationship with your half-brothers and your older brother.
10 You grew up in the western suburbs of Melbourne. You attended local primary schools. You say you were not diagnosed with ADHD but you were always in trouble as you recall it from those school days. You do not recall any unhappiness or difficulties at home with respect to domestic violence or substance issues. You attended the Altona North Bayside Secondary College for Year 7 and Williamstown Bayside until partway through Year 8 and then you transferred to Kensington Community where you completed Year 10 in the year 2010. After leaving school you were not employed in any regular employment but you did some part time work. As I say, you are currently aged 18.
11 You do have some prior convictions, of course, and these have been made the subject of some comment, and indeed it is apparent that you were before the Sunshine Children's Court on 16 December 2010 for a range of assault-related matters, and then before the Melbourne Children's Court on 11 October 2011 for damaging property, then again the Sunshine Children's Court on 7 May 2012 for a range of serious matters, including robbery and attempted robbery, in respect of which you were ordered to be detained in a Youth Justice Centre. You were before the Sunshine Children's Court on 12 November 2012 for offences of robbery and attempted armed robbery and again ordered to be detained in a Youth Justice Centre.
12 As I understand it, this matter was committed not longer after you were released from the Youth Justice Centre, and of course that is a matter to be taken into account with respect to sentence on this occasion.
13 Various reports have been tendered on your behalf, and I have already read from Carla Lechner's forensic psychology report which has been of great assistance to me. She also added with respect to your drug and alcohol history that you began smoking marijuana at the age of 14 and in about 2011 you began abusing methamphetamines, or ice, and it was your continued use of ice on your release from the Youth Justice Centre, of course, which brought you undone on this occasion as well. Clearly, you have also had difficulties with alcohol, having begun drinking at a very early age.
14 With respect to Ms Lechner's opinion, it was significant that she said that in light of your reported head injury and subjective feeling of subsequent cognitive decline, a neuropsychological assessment was strongly recommended, and to that end a report was sought from Dr Rani Jacobs, a psychologist, who undertook various tests with you, and it was her summary that your cognitive profile does not reveal any focal deficits, but rather the pattern is more suggestive of longstanding impairments in attention or function. It is likely you sustained a concussion from the blow to the head which generally resolves within 12 months for the majority of concussive injuries, but there are additional impairments in your profile that are likely to pre-date the injury, and given there is a lump on the right side of your head it was strongly recommended by her that it be reviewed by a medical doctor. I have regard to both of those reports which I found most helpful, in addition to the very complete submissions that were made on your behalf with respect to factual and other matters by Ms Smith, who appeared for you on the earlier occasion and provided further submissions with respect to the ultimate disposition.
15 I also had the advantage of the Youth Justice Centre assessment report prepared by Mr Reardon which I found helpful and which I discussed with counsel this morning. What emerged from the sentencing conversation is that you say, and it was accepted I think by those present at the sentencing conversation and those particularly assisting you that you had indeed changed since the behaviour of some 15 months ago. I am satisfied that you, have changed and you deserve that further opportunity to demonstrate that change to those at the Youth Justice Centre.
16 I also had regard to the various character references, of course, which have been provided by Glenn McGowan and Thomas McGowan and they have been most helpful, as well as the fact that whilst you have been on remand you attended various programs which are set out in that letter.
17 I am on balance satisfied the chances of your rehabilitation are looking much stronger than they did as reflected in the assessment report for the Youth Justice Centre when referring to your behaviour of 18 months ago. I think there are strong prospects of your rehabilitation. There is evidence that you have significantly changed and you are determined to embark on a new behavioural program and that you want to mend your ways, and those around you certainly are going to assist you in that regard.
18 With respect to your co-offenders, I have already noted their age and circumstances and the sentences they received, bearing in mind, of course, that they had more charges than you, including the burning of the vehicle, although of course they were younger. But, of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence, which is always of importance in a case such as this, involving as it does the use of weapons and an attempted robbery in circumstances such as this. Specific deterrence is also of some importance given the range and nature of your prior convictions or appearances in court. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which as I say I find to be diminished in light of your demonstrated change in behaviour and also, of course, that you have had a long time on remand and been able to consider whether or not this life of youth justice and prison is something that you want to continue, or whether indeed you are determined to change.
19 Application has been made by the prosecution for the retention of an intimate forensic sample previously taken from you and you have not opposed that application so I have made that order. So it is in the circumstances discussed this morning with counsel that it seems to me you should have the opportunity of a further Youth Justice Centre order to demonstrate that you have changed and to demonstrate particularly to those around you that the change is solid and dependable and that when you are released as part of the Youth Parole system that you have people who will provide you with accommodation and employment. The members of your family, are loyal and very strong in support of you and you deserve the chance to live up to their expectations and indeed your own expectations. To that end it seems to me that a Youth Justice Centre order is appropriate in your circumstances and for a term of 18 months.
20 I also declare pursuant to the provisions of the Sentencing Act that you have already spent 275 days in custody with respect to this matter and that that should be noted in the records of the court. I note for the provisions of s.6AAA had you not pleaded guilty I would have ordered a term of three years in the Youth Justice Centre.
21 Anything further?
22 COUNSEL: No, Your Honour.
23 HIS HONOUR: There we go, Mr McGowan. As I say, you have earned your second chance - or I think your third chance, but as you and I both know, and I am sure everybody in court understands, we are running out of chances. As I say, you have built up a very impressive record of prior convictions already and I have no doubt that this very, very long time in the adult prison has not been a thing that you would like to repeat and this is really your opportunity. You will need to be clever about how you make sure that you present to the Youth Justice Centre a different person than you were before. But I say, all very easy for us to say. All the hard work is before you, but we wish you well, Mr McGowan, and we hope we do not see each other in court again.
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