Director of Public Prosecutions v Minahan
[2015] VCC 1728
•19 August 2015
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-00045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MINAHAN |
---
| JUDGE: | JUDGE MULLALY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 August 2015 |
| DATE OF SENTENCE: | 19 August 2015 |
| CASE MAY BE CITED AS: | DPP v Minahan |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1728 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ginsbourg | Office of Public Prosecutions |
| For the Accused | Mr M. Page |
HIS HONOUR:
1Daniel Minahan you have pleaded guilty to one charge of armed robbery committed on 21 August 2014. The circumstances of this were set out in the prosecution's opening which was read and tendered during the plea. I will attach those opening to these reasons, and as such there is no call for me to repeat the details now.
2What I am required to do is assess the gravity or seriousness of what you did. Factors that go to the seriousness of this crime were that you were with another man, also armed. You and the co-accused bailed the victim up in the driveway of a house that he was staying out. He was entitled to feel safe at this place. You took all he had, his backpack with electronic equipment, his tools, his shoes and his pants, having an aspect of humiliation about that. Your threats were violent. The knives both you and the co-accused had were dangerous and frightening.
3The impact upon the victim is set out in his victim impact statement. He is fearful, hypervigilant is really the way I take it. That is, he is always looking over his shoulder and concerned when he goes out to see friends that something might go wrong. He was really tossed by what happened to him on this occasion, and I take into account the emotional effect upon him.
4You, Mr Minahan, are now 26. The cards that you have been dealt in life have not made things easy for you. Your father was an alcohol and effectively abandoned the family when you were very young. This was in the context of your sister dying as a child from a terrible cancer. Tragedies of this kind leave a long-term mark on those with many resources. Your family, it seems, had few resources.
5Your mother had a number of partners thereafter, and other children. You were sent to school but could not keep up at all. You were said to have a learning difficulty and were medicated for ADHD. Today I learnt from written evidence from your aunt and your grandmother that you were in fact transferred to a special school because of what they say is your intellectual disability.
6You have not been formally assessed for an intellectual disability, to see if you might be eligible for services under the Disability Services Act, though I note you told the Community Corrections assessor that you were eligible. It remains unclear.
7However, from the evidence of a psychologist report prepared by Mr Cummins in 2011, and from the letters of your aunt and your grandmother who know you best, I have concluded that you have a very low intellect, at or below the borderline. You have never had much employment at all.
8Your low intellect, in my view, is relevant to why you did what you did. You have a poor capacity to think things through, and you allow your anger and frustrations to get the better of you. I cannot ignore this important aspect of who you are, and as such I do not need to visit on you the full weight of denunciation or general deterrence.
9Your mother relocated to Yarrawonga when you were in your teens. She had her own difficulties but remained supportive, or as supportive as she can be. Other important support comes from your grandmother and your aunt, and I will mention them yet again shortly.
10You took to excessive drinking in your teens and have been troubled by using amphetamine type drugs for many years. Unsurprisingly with all this, you have got in with other troubled young men it seems, in and around Frankston in your teens, and got into trouble regularly. This saw you dealt with by the Children's Court on multiple occasions, and later by the Magistrates' Court.
11You were sentenced to youth justice centre detention in 2007, and three times in 2008. You were not rehabilitated in the youth justice centre, but have continued to offend in various ways including violent offences ever since. You have received a number of gaol terms. One relevant previous offence was a charge of recklessly causing serious injury for a stabbing.
12Your previous history makes your offending on this occasion more serious. It requires weight to be given to deterrence to you, the protection of the community for you, and it makes your prospects of permanent reform guarded.
13You were on bail at the time of these offences. You committed offences, it seems, before the armed robbery, and have been in prison on remand or undergoing sentence since 22 August 2014. With the sentence you received after you were put on remand, you have only 93 days to be reckoned as part of the sentence that I impose. I take into account the whole of your time in custody, now just short of a year.
14Your counsel pointed out that when released from gaol or detention in the past, you have had no structures or supervision. Save for one period of time, you have quickly fallen back into drugs, alcohol and bad company. The letters from your aunt in particular notes this, and she says that she will have you, or allow you to live with her on your release so you are not homeless.
15I have come to learn of the high risk of reoffending if accommodation is problematic upon a person's release from prison. This development of your aunt providing you with stable housing provides to me significant comfort as to your prospects of staying out of trouble when you are released.
16There is another important aspect of your life that needs to be mentioned. It may combine with your aunt's help to keep you away from drugs and bad influences upon your release. You have had a long-term relationship. The two young daughters you have are very important to you. For a period, I think in 2013 and 14 before this offending, you were able to stay out of trouble, as you were the fulltime carer of the children. You hope to re-establish your connections with your daughters and provide them with a stable father figure, something that you did not have yourself.
17Your counsel submitted that gaol plus a community corrections order was in this case the appropriate and just sentence. The prosecution did not argue that such a sentence was outside the range available to me.
18Ordinarily for an armed robbery, with a man of your record, a sentence longer than two years, or the two years that is available for a combined sentence, would be too short to be a just and appropriate sentence. Thus it would disallow a combined sentence with a community corrections order. What would normally happen would be a sentence of imprisonment with a potential parole period.
19However, I must not lose sight of all the circumstances personal to you and the offence itself, and of the guidelines provided by the Court of Appeal in the important decision of Boulton. What was said in Boulton's case was that gaol is not just a sentence of last resort, but really little occurs by way of rehabilitation in a prison. The risks of recidivism are in fact increased by gaol terms.
20If you are given structures and stability on your release, and further punishment by giving back to the community in a practical way by unpaid community work, then the community is probably better protected, as you are brought more into a rehabilitative way of thinking.
21Mr Minahan, you are entitled to consider yourself part of this community, not part of some separate underclass routinely going in and out of gaol. You are a parent, and have good family around you. You should take up the opportunities that are given to you, and not let your aunt and grandmother and your daughters down in the future. If you falter, you will waste your life with more regular and perhaps even increasingly longer stints in prison, until there is not a lot left.
22The attorney-general of this state, or previous attorney-general of this state in introducing a new regime of community corrections orders spoke of the importance of community corrections orders keeping families together, as opposed to incarcerating people. Here, though your family life is not quite perhaps the standard nuclear family, it is nonetheless very important that you stay close to those who care for you, and play your role as far as possible as a parent. In all of this, you must put drugs and alcohol and other like crutches entirely behind you.
23Mr Minahan, for committing of armed robbery, a serious offence that frightened the victim, you must be further imprisoned. However, I have significantly shortened the time that you must be imprisoned and combined it with a community corrections order that will endeavour to help you rehabilitate.
24The sentence that I impose is that you are sentenced to 12 months' imprisonment with a two year community corrections order to follow. You must do 200 hours of unpaid community work. You must be the subject of supervision of the Office of Corrections, must undergo drug assessment and treatment, likewise for alcohol. I think that is a long-term problem. You must be assessed and treated for mental health problems, and you must make yourself available and comply with any other programs that the Office of Corrections consider are appropriate for you, to keep you out of trouble.
25A document is going to be printed up soon that will set all that out, and I will explain to you. There are other conditions that apply to a community corrections order, and they apply to everyone, and I will explain them.
26I have taken into account your plea of guilty, late as it was. But had you pleaded not guilty to this offence and been found guilty of it, almost inevitable in my view, I would have sentenced you to three years' imprisonment with a minimum of two.
27There has been an application for forfeiture of some items, and I intend to grant that application. Is there anything else required?
28MR PAGE: The formal declaration of presentence detention, Your Honour.
29HIS HONOUR: Sorry. Thank you very much. You have already done 93 days; I have mentioned that. Those 93 days that had been reckoned will be entered into the records of the court. Those 93 days are taken as part of the sentence that I have just imposed. I will enter it into the record so the authorities will be in no doubt that you have already done the 93 days. Do you understand?
30Mr Page, Mr Minahan will just to have to take it up with the Office of Corrections whatever flows from the other orders that seem to be still out there that he has got a community corrections order still from Judge Mason.
31MR PAGE: Yes, I'll make sure my instructor takes steps to deal with it, Your Honour.
32HIS HONOUR: Mr Minahan, the order that I have just made will last two years. These terms that I am about to run through apply to everyone, so they apply to you. Most importantly, you must not commit another offence for which you could be imprisoned during the time the order is in force.
33So for the two years that you are on the community corrections order, if you commit an offence punishable by imprisonment, you will come back to see me. And once I am reminded of all this, Mr Minahan, I think I will quickly deduce that I must have been extremely merciful, because I have been. And that will not be repeated. You will just go back to gaol.
34So you have to just put committing crimes behind you. You have got to comply with any obligation or requirement under the Sentencing Regulations. That will be photographs and things they take to make sure that you are the person and you are where you should be and so on. You must report to and receive visits from the Office of Corrections.
35You must report to the Community Corrections Centre within two clear working days of this order commencing. This order will commence upon the completion of your term of imprisonment, and will last two years. The Community Corrections Office you have to go to at this stage is Frankston, and it seems appropriate given where you are going to be living with your aunt.
36You must not leave Victoria without permission. You must tell the Community Corrections Officer within two clear working days if you change where you are living, or if you get a job or change your job. You must obey all lawful instructions from the Office of Corrections.
37So they are standard to everyone and to you in particular. You have to do 200 hours of unpaid community work over two years. That means turn up on time every time. I say this to everyone more or less, Mr Minahan, but sometimes going to do your community work puts you at high risk of running into people that might not be as keen to stay out of trouble as I hope you will be after time in gaol. You just have to do your community work and stay away from the influences that have meant that you have been in gaol more than you should have.
38You must be under the supervision of a Community Corrections Officer for the two years. You must undergo assessment and treatment for drug abuse. You must undergo assessment and treatment for alcohol abuse. Take up the chances to get these things dealt with. You must undergo any mental health assessment and treatment, and you must participate in programs that address factors relating to your offending, as directed by the Office of Corrections.
39If you consent to that, sign it. I will sign it. Then you do the further 12 months less the 93 days, and then start this.
40(Community-based order signed and acknowledged.)
41You will get a copy of that in due course, Mr Minahan. Thank counsel very much for their assistance.
42Mr Minahan, there is not a place in court to spend any time with anyone who has come in, so you just have to go with the Office of Corrections now, and they will catch up with you back in the prison. Thank you.
43Again, thanks Mr Page for speedily bringing this in. Many people in your position these days are defined as saying that once a case resolves they cannot possibly do anything for four to six weeks or something or other. Much better to let a person like Mr Minahan know what is happening.
44MR PAGE: Yes, Your Honour.
45HIS HONOUR: Thank you very much Mr Ginsbourg, as usual. I will just down until the next one.
---
0
0
0