Director of Public Prosecutions v McIntosh

[2016] VCC 407

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-01519

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN BENJAMIN McINTOSH

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	7 April 2016
DATE OF SENTENCE:	12 April 2016
CASE MAY BE CITED AS:	DPP v McIntosh
MEDIUM NEUTRAL CITATION:	[2016] VCC 407

REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Make threat to kill- armed robbery-possess cannabis and deal with property suspected of being the proceeds of crime-disadvantaged background- young offender- Azzopardi.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	John Cain Solicitor for Public Prosecutions.
For the Accused	Dr G. Boas (Plea) Mr M.W. Brugman (Sentence)	Michael Brugman and Associates.

HER HONOUR: 

1Jordan McIntosh, following a sentence indication hearing, you have pleaded guilty to two charges of make threat to kill, two charges of armed robbery, one charge of possess cannabis, and a related summary charge of deal with property suspected to be the proceeds of crime.

2Those charges are serious and that is evidenced by the maximum penalty that is prescribed by Parliament, and they are, ten years' imprisonment for make threat to kill, 25 years' imprisonment for armed robbery.  Possess cannabis where the court is satisfied on the balance of probabilities that the cannabis was not possessed for any purpose relating to trafficking, 30 penalty units, or one year, or both, and in any other case, 400 penalty units, or five years' imprisonment, or both.  Deal with property suspected of being the proceeds of crime, two years' imprisonment, or 240 penalty units.

3I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read at the sentence hearing indication.  That has now been adopted by the prosecution as the plea opening.

4I note that you have also admitted your prior criminal record.  You are now aged 22, and there are eight court appearances, two of which were dealt with in the Children's Court and six in the Geelong Magistrates' Court.

5You have had a variety of convictions in the past for dishonesty offences and, relevantly, for the purposes of this sentence, you have got convictions for unlawful assault, assault in company, affray and other drug related offending.

6In the past you have been dealt with by way of a variety of dispositions, including probation as a young offender, and community correction orders and fines.

7The present offending represents an escalation in your criminal behaviour.  I am satisfied, having regard to the circumstances surrounding these matters, that you committed the offences whilst under the influence of drugs, whilst providing a context and explanation for the offending, in no way excuses your behaviour.

8Your behaviour on entry to the Raduka home on 17 March 2015, is nothing short of disgraceful.  An aggravating feature of the offending was, at the time, you were in possession of a silver coloured handgun that you waved about.  Although it is accepted by the prosecution that you never directly threaten Ms Raduka or any of her daughters with that gun.

9Your behaviour was acknowledged by your counsel, Dr Boas, as being aberrant.  It would have been terrifying for the Radukas to undergo this experience.

10The background of the offending was that you knew Kyle Jensen, the boyfriend of Katelyn Raduka, who was aged 17.  You knew Kyle, both of you sold marijuana.  Kyle Jensen was, at the time of this incident, 16, and was living with the Radukas off and on.

11You attended the Radukas' home on Tuesday 17 March 2015, looking for Jensen, whom you alleged owed you money.  He was not there.  You demanded to see him.  Mrs Raduka told you that he was not there.  You were not satisfied with that and demanded to be allowed into the house.  She felt very intimidated by you and unlocked the door and said again that Jensen was not there.  You told her that you were not leaving until you had him, and walked into the house and, as you did so, walking through the house you produced the gun and said that you were looking for Jensen with the gun raised in front of you.

12Mrs Raduka persisted telling you that Jensen was not present, but that her younger daughter, Kallysta, aged ten, was in the house.  You continued to look for Jensen, kept asking where he was and saying that you would not leave until you had him.

13You then sat in the lounge chair and refused to leave.  You were very agitated and you could not stop moving about in the chair.

14After about 20 minutes, Mrs Raduka received a call from her older daughter, Katelyn.  She did not explicitly tell Katelyn what was going on, she was hoping that she would realise what was happening and that she would not come home.

15Once she had finished with that call, Katelyn kept calling her back, and eventually you told Mrs Raduka to go and pick up her daughter.  She left the house, leaving with her ten year old daughter.  She returned with both daughters, and you were still present.

16You pressed Katelyn as to Jensen's whereabouts, but she was unable to say.  In the presence of them both you said you were going to kill him, chop him into little pieces and put him in the boot of your car, and that you had already had a hole dug for him.  That constitutes the circumstances of charges 1 and 2, threat to kill.

17Eventually Mrs Raduka offered you all her money, some $200, and asked that you leave the house.  You refused to take her money and continued to behave in a threatening manner.

18At one stage, her younger daughter came out of her room, whilst you had the gun in your possession and you put it behind your back until she went back into her room. 

19Both Mrs Raduka and her older daughter, Katelyn, were very scared by reason of your erratic behaviour.  In total it was about two hours that you were present at their house.

20Eventually they persuaded you to take property, such as a television, an Xbox, an iPad and assorted gold jewellery, at an estimated value of $1,800 to $2,000 which you accepted, and then agreed to leave.

21The prosecution case was that you stole the items offered by assuming the rights of the owner and that immediately before the theft you put the owners in fear that they would be subject to the use of force and, at that time, you were armed with an offensive weapon, and that constitutes charges 3 and 4, the armed robbery charges.

22The Crown accepts that charges 1 to 4 all form part of the one course of conduct.

23Mrs Raduka took you home with the property, which was then unloaded.  Ultimately, Jensen was advised about what had occurred and he contacted the police and investigations commenced.

24On Thursday, 19 March 2015, surveillance was undertaken outside your home address in Norlane, and during the course of that surveillance, police saw you leaving your home on a pushbike and attending another residence.  You then travelled back towards your home.  You were arrested by police in the street and when searched they located two clear plastic ziplock bags in your underpants, containing cannabis.      Another three ziplock bags with remnants of cannabis were located in your underpants.

25Cash totalling $1,355 was found in your wallet, that was seized as being suspected proceeds of crime.  That constitutes the summary charge.

26Police obtained a search warrant that was executed at your home address during which search they located 11 foils containing cannabis in your bedroom and a cannabis plant growing in the rear yard.

27The prosecution case was that you were in possession of the plastic bags in your underpants and cannabis foils in your bedroom for the purpose of sale.

28When arrested, a formal interview was conducted, during which you made some admissions to possessing the cannabis located in your underpants, but maintained it was for personal use.

29You denied possessing the three clear ziplock bags with cannabis residue that were located in your underpants and the explanation for the money that was found in your possession was later found by police to be untrue.

30You denied knowledge of the 11 foils of the cannabis located in your bedroom.  You admitted cultivating the cannabis plant in your backyard and told police the cannabis located in your possession was picked from that plant earlier that morning.     Subsequent analysis demonstrated that this proposition was not true. 

31You denied trafficking cannabis.  You denied attending the Radukas' home and stated you were home all day and did not leave your house.  You further denied possessing the handgun and taking property from the Radukas' home.

32Mr McIntosh, the objective gravity of your offending is very serious.  The fact that you entered the Radukas' property and did not leave when you were requested to do so, and behaved in such an aggressive and threatening manner over the period of about two hours is appalling and I accept that it terrified both victims. 

33I have had regard to what is stated in their victim impact statements and I note that Katelyn Hedley complains of suffering as a consequence of your crime, she is depressed, has difficulty sleeping, and is anxious and paranoid.  She has been to see a counsellor.  She has problems with ruminating about what happened, and she moved out of the Corio/Norlane area in order to avoid the prospect of running in to you for fear of the consequences.

34Her mother, Vanessa Raduka, has also set out in her statement how difficult it has been, the emotional turmoil that she suffered, and her anxiety as a consequence of this offending.  She now is very suspicious of people and feels unsafe.  I have had regard to those effects in regards to this matter.

35This was an episode that did unfold over a period of some two hours and the Radukas were subjected to your erratic and aggressive behaviour.  Fortunately, no-one was physically harmed. 

36In sentencing you there is a need to emphasise both general and specific deterrence and the court, on behalf of the community, must denounce this sort of behaviour and send the message that it is not tolerated.

37In respect to the possession of cannabis that was found at the time of your arrest, you maintained it was for your personal use. 

38Having regard to the combined factors that were identified by Mr Lewis, the prosecutor, that is, where the cannabis was found, the large amount of cash that was in your wallet and how the drugs were contained within foils and plastic bags, and residue in plastic bags, all are such that I ought not be satisfied that the necessary burden of proof has been discharged.

39I am satisfied the drugs were in your possession for the purposes of trafficking and, therefore, the higher penalty will apply.

40In formulating the appropriate sentence, I have taken into account the combination of mitigating factors that were urged upon me by your counsel, Dr Boas. In your favour, I have taken into account, firstly, your willingness to plead guilty to the charges outlined at the sentence indication hearing. I note that at the contested committal an offer to settle on this basis was made following that proceeding.

41You have now entered the pleas of guilty to all charges on the indictment and the uplifted summary charge, notwithstanding the late stage at which the pleas were entered, I consider there is utility in your plea.  It did spare the witnesses the further trauma of coming to court to have to give evidence on your trial and you have thereby facilitated justice.

42It is an acceptance of responsibility on your part.  I accept it represents some evidence of remorse. 

43Secondly, you are relatively youthful.  You are 22.  And as has been stated by courts in this State, youth of an offender is an important factor in sentencing and, in particular, I refer to the remarks of Redlich JA in Azzopardi v The Queen with whom Coghlan AJA and Macaulay AJA, agreed, and, in particular, I refer to paragraphs 34 to 37.

44In that decision it was confirmed that there are a number of considerations which underlie the premise of an offender's youth as a sentencing consideration.  What was highlighted was the fact that young offenders, being more immature, are therefore more prone to ill-considered or rash decisions; they may lack a degree of insight, judgment and self-control that is possessed by an adult, and they may not fully appreciate the nature, seriousness and consequence of their criminal conduct. Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated and, thirdly, courts, sentencing young offenders, are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospect of successful rehabilitation; and that is because whilst in gaol, young offenders are likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.

45Imprisonment for any substantial period carries with it the recognised risk that antisocial tendencies may be exacerbated, and the likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.

46Those oft cited principles have very real application in the circumstances of your case and are important considerations.

47Thirdly, I have had regard to your difficult family circumstances and lack of appropriate role model in your formative years.  The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, and full weight has been given to your deprived background, and I refer to the High Court decision of Bugmy v. The Queen.[1]

[1] 2013 HCA 37.

48Dr Aaron Cunningham, the forensic psychologist, in his report dated 23 March 2016, details in full your history of disadvantage, going back to your early childhood.  You have been exposed to violence, and there has been violence inflicted on you by your biological father, and you have seen your mother subjected to domestic violence.

49Your relationship with your biological father has been described as tumultuous, volatile and aggressive.  I refer to the letter of Luke Lindsay, Court Liaison Clinician, Barwon Mental Health Drug and Alcohol Services, letter dated 25 March 2015.

50Your mother, Jodie, in the past, has had her own issues associated with her addiction to heroin, and it was noted that at age seven, you discovered that she had overdosed and you had to attend a neighbour to get her assistance.  There has been instances in the past when you have been removed from her care and placed with your father, and all in all, you had a very difficult and tumultuous early childhood.

51Fourthly, I have had regard to your complex series of health issues, primarily mental health related.  There is a formal diagnosis of bipolar disorder, Tourette’s Syndrome, ADHD and PTSD.

52You have had a history of drug abuse commencing in your early teenage years, initially with cannabis and latterly with methamphetamine. 

53You have had exposure to trauma in recent times. 

54Your stepfather, with whom you developed a strong and supportive relationship, committed suicide by cutting his throat, on 7 January 2014, and his death has caused you lasting grief because he was very close to you and was a role model.

55Other young friends have died of suicide and cancer and recently your friend, Sam Birchell, was shot dead in front of your property and you came out to discover him with a hole in his chest from a gunshot wound.

56Fifthly, I have had regard to your post-offence conduct.  I note that you have been in custody some 48 days when your bail was revoked on 25 February 2016.  Your post-offence conduct has been productive.  There are no subsequent offences or pending matters.

57A letter provided by Tim Patterson from Penhyn Unit Mentor, dated 29 March 2016, confirms whilst on remand you have undertaken courses in occupational health and safety, textiles, communication and life skills.  You have been of good behaviour and you have been drug and incident free.

58Penhyn Youth Unit at Port Phillip Prison is the unit that recognises the vulnerability of young offenders in terms of environment and social and individual and health related needs.

59Any young person who is in that unit must have a minimal history of prior incarceration in the adult prison system and display a willingness to participate in programs of the unit. Preference is given to young offenders, prisoners aged 18 to 21, and up to 25 years.

60Notwithstanding your positive experience in prison, you have found your time spent in custody difficult.  Previously you have been prescribed Seroquel for assistance with eating and sleeping.  Since you have been in gaol that drug has been stopped.  You have also had some experiences with people trying to stand over you and threaten you and, generally speaking, you have not found your time in custody to be an easy one.

61Sixthly, I have had regard to your current supports and present circumstances.  There are positives in your life, namely you are now drug-free, you are physically well and fit, and taking care of yourself.  Exercising whilst you are in prison.

62There is evidence in the past that you registered for employment services and you are making considerable progress with your attitude and outlook towards life and exploring suitable employment options.  I refer to the letter from Sandy Alvaro, Employment Consultant, dated 28 January 2016.

63Dr Cunningham, in his opinion, states that you are a person who presents as emotionally and socially immature with poor emotional regulation and that you are not engaged with treatment services, but he considers there are several current protective factors that may stabilise you within the community and improve your psychological functioning.

64It is of significance that you have indicated a willingness to engage in drug and alcohol counselling and anger management to address your underlying behaviours.  Further, you have been attending church regularly whilst you are in prison.  You expressed to him a keenness and willingness to obtain gainful employment.

65I was impressed by the evidence given by your paternal uncle, Gaetano Caudello.  He is a plaster by trade.  He has no criminal history and lives in Geelong West.  He has been close to you most of your life and has been regularly visiting you whilst you have been in gaol.

66He said that he has has tried to set himself up as a role model for you and is familiar with all your complex background issues and addictions.  He has played a key role in your life over the last 12 months.  He undertook to utilise his contacts in the building industry to direct you to some employment opportunities, and was positive about that.

67Your mother, Jodie, is, and remains, very supportive of you and she is extremely concerned about your welfare.  She is currently living with your two younger half-brothers and is prepared for you to live with her upon your release.

68This further evidence that you do have strong supports within the community and Luke Lindsay refers to the good rapport that you have with Dr Ann Chirnside, general practitioner.  You have also had a history of dealing with Outreach workers and mental health nurses through Barwon Health, Mental Health Drug and Alcohol Services.  So those people are still available for you to re-engage with.

69Dr Cunningham recommended that you have mental health case management aimed at sourcing stable, independent accommodation, and linking you with education or employment.

70He says you require support to maintain independent living and work towards pro social goals, away from negative influences, and he recommended mental health case management through NEMI, Barwon Park Services, which is a mental health early intervention and prevention program, or Barwon Health.  Such engagement, he said, would reduce your risk of re-offending and positively predict rehabilitation.

71He foreshadowed that exposure to trauma, further trauma in a prison environment, would likely aggravate your current trauma, and that you remain vulnerable to negative influences in the gaol environment.

72He did acknowledge, because of your emotional and social immaturity, that you do require significant structured support in the community to effect rehabilitation.

73Having regard to the combination of all of those features that I have identified, I consider yours is a case where you have made a good start towards making and maintaining significant changes in your life and overall I am satisfied provided that you are kept on your present trajectory, that you do have good prospects for rehabilitation. I accept and adopt Dr Cunningham's opinion that in order to effect rehabilitation, you need significant and structured support within the community, to ensure that you lead a law abiding life and break the nexus between drug taking and offending.

74Your counsel, Dr Boas, sought a Community Correction Order.  Mr Lewis, the prosecutor, sought an immediate custodial sentence, having regard to the serious nature of the offending, the fact that it was protracted and involved the use of a firearm, and the effects on the victims who were terrified by reason of your actions.

75Mr McIntosh, this is a very difficult sentencing exercise, however, what made it unusual was the very real efforts that you have made to date.  You are a very troubled man who comes from a very disadvantaged background, but I accept that you have taken tentative steps already to turn your life around, and that evidence is compelling, especially for somebody who has suffered such an unfortunate disadvantaged background.

76Your rehabilitation, ultimately, is a very important part of the sentencing process, and as mentioned, I have had regard to the relevant principles in relation to youthful offenders articulated in the decision of Azzopardi, and I have also had regard to the guideline sentencing judgment of Boulton v The Queen[2]. In that decision the Court of Appeal spoke about the negative effects of imprisonment on youth.

[2] 2014 VSCA 342.

77Further, it was accepted that a Community Correction Order is intrinsically punitive and is capable of deterring others and providing for specific deterrence.

78The Court of Appeal confirmed that a Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

79The court outlined considerations which may justify a shorter Community Correction Order for a young offender, comparative to an older offender.

80I am satisfied, having regard to all of the factors that I have identified, that a properly crafted Community Correction Order is, in your case, capable of satisfying all the sentencing principles, whilst promoting your rehabilitation.

81I have already outlined to you the assessment outcome report and the recommendation that you are assessed as suitable for such an order. I propose to convict you and sentence you in respect to the two charges of armed robbery, one charge of deal with property suspected proceeds of crime; two charges of make threat to kill, through the imposition of a Community Correction Order for two years' commencing on today's date, on the terms that I outlined earlier, namely that you must perform 150 hours unpaid community work over the two year period, that you undertake treatment and rehabilitation for drug abuse and dependency, and also mental health, that there be supervision and judicial monitoring.  The first occasion for review is 20 September 2016, at 10 am, at Geelong County Court.

82All of these conditions, together with the core conditions that have been explained to you again today, apply. 

83You are agreeable to, and have indicated your consent to the order being made by the court.  You have also had explained by me the possible consequences of non-compliance. Finally make the forfeiture and disposal sought.  I note those orders are unopposed.

84Can I please ask that you prepare the Community Correction Order.

85I have not made a s.6AAA declaration because I am not required to do so.

86MR LEWIS:  That is correct, Your Honour.

87HER HONOUR:  I think I have covered everything.

88MR LEWIS:  The only thing, Your Honour, was when Your Honour was just enumerating the charges in relation to the CCO I just do not think Your Honour referred to the possession charge.

89HER HONOUR:  I meant to, possess cannabis.

90MR LEWIS:  I assume Your Honour did, but, yes.

91HER HONOUR:  Yes, I did, sorry.  So that is to be included in the Community Correction Order.

92MR LEWIS:  Thank you, Your Honour.

93HER HONOUR:  There are convictions for all of those charges.

94MR BRUGMAN:  Your Honour pleases.

95HER HONOUR: I will ask that you take the CCO down with
Mr Brugman and get Mr McIntosh to read through that and sign that.

96MR BRUGMAN:  Yes, Your Honour.

97HER HONOUR:  All right, so a copy has been provided to your client, Mr Brugman?

98MR BRUGMAN:  Yes, Your Honour.

99HER HONOUR:  I just ask that you ensure that he attends the Geelong Community Corrections Services within the time frame specified.

100MR BRUGMAN:  Yes, Your Honour pleases.

101HER HONOUR:  I understand given that he is currently in custody, he will be returned to Port Phillip.

102MR BRUGMAN:  Yes, Your Honour.  In fact, it is probably a good idea if he goes out there today and I think his mum will take him up there today, once he is released, Your Honour.

103HER HONOUR:  Yes, but he will not be released from here?  He will, yes.  They are indicating to me he will.  So that is good.  He can be released from the court house here today?

104PRISON OFFICER:  Yes, Your Honour, once we get the calendar, we fax it to certain people, they send a release fax, and Jordan will get an original so the police do not re-arrest him.

105HER HONOUR:  Good.  So you heard that, Mr McIntosh, you will be processed through the court today and you will be released from custody and your mother will take you to the Geelong Community Corrections Service, okay?

106OFFENDER:  Yeah, thanks for that.

107HER HONOUR:  I accept that the two year time frame will be difficult for you, but you have just got to try.

108OFFENDER:  I'll manage.

109(Offender released.)

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