Director of Public Prosecutions v Mobourne
[2022] VCC 1425
•23 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL JURISDICTION
CR-19-02098
CR 19-02089
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB MOBOURNE KANE AUSTIN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Bairnsdale |
DATE OF HEARING: | |
DATE OF SENTENCE: | 23 June 2022 |
CASE MAY BE CITED AS: | DPP v Mobourne & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1425 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
For Accused Mobourne | Ms T. Theocharous | Kurnai Legal |
For Accused Austin | Mr A. Waters | Victoria Legal Aid |
HIS HONOUR:
1Jacob Mobourne and Kane Austin, you have each pleaded guilty to one charge of armed robbery and are co-accused in that matter. You, Mr Mobourne, are now 22 years of age and were 18 years of age at the time of the offending. You, Mr Austin are 24 or 25 years of age and were 21 years of age at the time of the offending. Each of you pleaded guilty and I accept there is some degree of remorse. You obviously must get the utilitarian benefit of that plea of guilty, particularly in these times of Worboyes. I will not be going into great detail but I have a lot of material before me which clearly indicates that each of you can rely very heavily on the decision of Bugmy. Remarkably, when one actually analysis it, you each have very few prior convictions for this particular matter, largely due to the way that the times all panned out. I also take into account the circumstances of incarceration under COVID.
2The charge of armed robbery, and this applies to two charges here, I think, is a Category 2 offence that requires a gaol sentence unless s52H is enlivened. It is common ground here that because of your intellectual disabilities for each of you as well as a number of other matters, that that enlivens it and a gaol sentence is not mandatory. In your situation, Mr Austin, I am going to give you one in any event because of your recent arrest and the problematic nature of a CCO. You, Mr Mobourne, will be receiving a CCO and I will come to that in a moment.
3The nature of this offending was, and again this will be in very brief compass, the Crown opening is on file and has been tendered, is that you two and other young Aboriginal men attended at the Top Pub in Morwell back in
February 2019. There has now been a delay of some three years and of course I take that into account.4There was an imitation firearm which apparently was taken from a bag by your brother, Mr Mobourne. Two people including your brother went to the bottle shop and stole a six pack of beer and were leaving when the unfortunate person serving behind the counter came out and chased them, who was then turned upon and a nasty armed robbery took place where he was threatened with what he believed was a gun and feared for his life. I have read his victim impact statement and it eloquently describes the fear and ongoing psychological difficulties that that has caused him. There was a pretend, if you can put it that way, sawn-off shotgun used and a knife. The Crown do not put the sawn-off shotgun or the knife into either of your hands and I take that very much into account. Your brother, Mr Mobourne, received a sentence of 301 days, which in fact was time served, plus a CCO, but I take the view that parity is of no real significance because his role, on the Crown opening before me, was far greater than either of you two. There is a parity difficulty between the two of you because, of course, of you recently having been arrested, Mr Austin, on serious matters, and the uncertainty of what the future may hold.
5The offending I will describe has to be regarded as serious. It causes the application of general and specific deterrence as well as denunciation and punishment. Each of you participated in Koori Court and have participated in Koori Court in the past. Whether it is of any benefit to you I do not know. At least you have had the courage to do it.
6You, Mr Mobourne, have by this offending breached a community corrections order that was put in place by Her Honour Judge Lawson back in 2020. That was for armed robbery and it was, as I recollect, armed robbery on an occupant of a house in an endeavour to get his car. That was a treatment only armed robbery and in these circumstances where it is agreed that the appropriate disposition for you is going to be a CCO I see no reason to have a triple up as you are already on one from the Magistrates' Court. Accordingly, on that charge, or things may have been different were there not other charges here, on the breach, I found it proved, you are convicted and discharged, and I simply confirm that community corrections order which will make an end of it. I am doing that for pragmatic reasons and no other. That leaves you to be sentenced for the armed robbery before me now by way of a CCO, and I will come back to that in a moment.
7You, Mr Austin, have before me on one, not only the armed robbery that is here now, a part heard plea with one charge of armed robbery and another charge of endangerment or resisting an emergency worker. You have also breached a community corrections order given to you by me some years ago. That was a situation where again it was an armed robbery and you seem to have done it on a number of occasions over a relatively short period of time. At some stage somebody is going to give you a really significant sentence, Mr Austin, and you will really have no one to blame but yourself.
8In any event, on the matter for which I have given you the CCO I gave you six months' imprisonment, which you have served. On the charge of breach I will convict and discharge. I will set aside this community corrections order and I will sentence you to be imprisoned for a period of 270 days. I direct that 180 days of that sentence be regarded as served and the balance of 90 days I will make concurrent with the sentence I impose on the two other indictments before me.
9I do not think I have to go into great detail about the background of each of you. You, Mr Mobourne, have had a very difficult life indeed. The circumstances are that you were - sorry, you are a Gunai Kurnai and Yorta Yorta man. You were born in the year 2000. You have a couple of brothers and sisters. Your parents separated when you were young and the relationship between your mother and her new partner was violent, physically violent and verbally violent. You watched that as a young child. You were also exposed to frequent abuse of alcohol and drugs. Your life was spent as a child in extreme poverty. You had a number of untreated health issues because of that. They include an unrepeated, as at that time cleft palate, hearing impairment in both ears, intellectual disability, malnutrition and severe dental problems. It is hard to imagine how a young person could come into the world and try and survive with such dreadful disadvantages.
10People have endeavoured to assist you over the years. You also had a situation where there was a sexual assault on your sister, which left her traumatised and also impacted upon you. You have had, for one so young, a significant amount of sorry business over the last few years and I take those matters into account. You do have an intellectual disability within the meaning of the Act and I have cited the document confirming that.
11There is a report from Dr March, a neuropsychologist, and that really confirms what I said before about your difficulties over the years. He also added that you had had past heavy alcohol use but you do not drink any more and that you would drink a lot on given occasions. It seems pretty clear from all the material that what has happened to you during your life is that within the group of cousins and whatever that you have been knocking about with, that you were regarded as the one who would receive the least punishment and were prompted into committing offences. It seems pretty clear to me that your offending in many ways was to get acceptance within that group and that is a sad thing indeed.
12What does give me much more confidence now than I would have had a couple of years ago is that you now have NDIS involvement and I was impressed with the efforts in which they are going to endeavour to look after you. One of your difficulties has been, even though you have done various programs on community corrections orders and been on a Justice plan and been to Wulgunggo Ngalu, it is very difficult for you to retain the lessons that are learned in those circumstances. With the one on one support of NDIS I think that you have a much better chance of surviving in this world.
13You promised me the other day that you would not do any more, 'stick-ups', and I will hold you to that, Mr Mobourne. If you come back before me breaching the CCO for a stick-up we might have a very, very different conversation, an old man talking to you, but I believe you will remember that conversation and it may assist you in the future.
14I have had you assessed for a community corrections order and you have been accepted. Accordingly, what I am going to do is on that charge of armed robbery you will be placed on a three year CCO, it will be with conviction, obviously, you will be subject to a Justice plan, which I had better tender actually. We will make the Justice plan Exhibit - - -
15Exhibit 1 - Justice plan.
16Mental health answer assessment and programs to reduce reoffending. I will also include, of course, supervision in this situation. It is a circumstance where I am obliged to give a 6AAA insofar as that is concerned. All I will simply say is that had the matter proceeded to a verdict from a jury the circumstances may have been different because the factual situation may well have been very different in terms of what you were sentenced for. I know you have not got the faintest idea what I am talking about but as far as the s6AAA is concerned what I will say is that I would have given you a CCO in any event, probably with much more stringent conditions, but that is very much up in the air.
17All right, Jacob, do you understand that?
18OFFENDER MOBOURNE: Yes, I do, Your Honour.
19HIS HONOUR: Yes.
20OFFENDER MOBOURNE: (Indistinct).
21HIS HONOUR: Yes. Jacob, do you understand that?
22OFFENDER MOBOURNE: Yeah.
23HIS HONOUR: All right. Is someone there with you to help explain it? But it is a CCO. You have got your Justice plan, right?
24OFFENDER MOBOURNE-: (Indistinct).
25HIS HONOUR: Right? They might send you out to Wulgunggo Ngalu, I do not know. See how you go with all that, right? But as I said to you the other day, it is really going to be up to you. Unless you want to be an old man living in a prison cell you have got to get your act together, my friend, all right? So I will take that you agree to that, I take it? You agree?
26OFFENDER MOBOURNE: Yeah.
27HIS HONOUR: Yes, all right. I am sure it will be explained to him what he just agreed to. Yes, thanks, Ms Theocharous. That can be done. Because of COVID I can do that orally. So that is the sentence passed on, passed on Jacob. But I do not think there are any other orders I need to make in respect to Jacob, are there?
28MR GRANT: No. I think Your Honour has already made a disposal order.
29HIS HONOUR: I made that disposal order, yes.
30MR GRANT: No, I do not think there is, Your Honour.
31HIS HONOUR: As I say, that is pretty succinct sentencing remarks. I will elaborate on that if need be. All right, I then turn to Kane.
32Your background, Kane, is somewhat similar. You do not have the physical disability that Jacob had and you certainly have intellectual difficulties and emotional difficulties that you have suffered over the years. I have already mentioned the CCO that you were breached on when I sentenced you previously for armed robbery. You then have a subsequent matter of an armed robbery where you took a car and threatened the owner with a knife and eventually drove off, endangered an emergency worker by basically revving the car up and driving in a totally erratic, intoxicated way. That matter has now been outstanding for some time. Various attempts have been made to assist you to rehabilitate, being placed into various programs and the like. It is pretty clear that when you were travelling well and mentally all right and not using drugs that you can be a useful, very useful member of your community. You have, as I understand it, worked for Bunurong people and in the past have been able to work and maintain work. You are also in a situation where you have
re-partnered and unfortunately with the circumstances that you now find yourself in, mate, place that under great stress but, however, that is the way
it is.33As I have already indicated, the prior convictions are difficult to interpret in this situation because of the timeframe over which they occurred. Your situation again can be dealt with pretty simply. You are the eldest of seven children. Your father was a heavy drug user and had been in and out of gaol his entire life. Your mother regularly used marijuana and alcohol. You had a long history of brutal, physical violence from your parents. At the age of 13 you escaped to become homeless. You were living on the streets and you survived by eating out of rubbish bins. You had no contact with your family for four years. You noted and pointed out, and I have no reason to doubt, that the family violence was very severe and you could not continue to survive in that environment.
34You were introduced to marijuana and alcohol by your father at the age of nine and by the age of 13 you had a heroin habit and at the age of 14 an ice habit. You then at 16 met a girl and you have two children, which Auntie Maureen said the other day during Koori Court that she knows, and it has been a circumstance where you have been homeless and all sorts of problems have occurred over the years. You have been on a methadone program. You have had - well, you clearly have a post-traumatic stress disorder, which is completely understandable. Endeavours have been made to treat you for that.
35You have some doubts about the medication so far as your mental health is concerned but that is really all that is ever going to be available to you. I am extremely concerned in your situation that you could easily, even though you have not done a lot of gaol, you could easily become institutionalised but unfortunately in the situation we are in there is really nothing much I can do about it.
36The prospects of your rehabilitation, I am hopeful, but they do appear remote. The risk of you reoffending, as I think with Jacob, would be high if you are going to use drugs and continue the life that you are living. Bunjilwarra wrote to me when you were doing their program back in 2020 and Uncle Pat came and spoke about you and it seemed you were doing pretty well for a while. I have also got the neuropsychological report of Mr Jackson. I have taken that very much into account and it basically confirms the matters that I have outlined. He is of the view that as long as you can stay abstinent your mental health situation and your functional capacities may well improve. You are of a borderline to low average range in overall intellectual functioning and as I have already indicated, I do not need to go through it again. The principles of Bugmy and those sorts of cases apply equally to you as they apply to Jacob.
37That is the situation that I am left with and it is a most unfortunate one. I have got no option now but to incarcerate you with a head sentence and a minimum term. I am imposing sentences which may to some seem lenient, but I think, anybody who has an understanding of your background and of your early age of the dreadful life experiences you have had would understand why I am trying to give you every chance, as we have done in over the last three years, to get your act together and potentially rehabilitate, but in any event, on the earlier indictment of armed robbery and criminal damage and resist, you are sentenced on Charge 1 to 18 months; on Charge 2 to three months concurrent; on
Charge 3 to nine months. I direct that three months of the charge imposed on Charge 3 be cumulative upon the sentence imposed on Charge 1. That gives a total effective sentence on that indictment of 21 months.38On the indictment of armed robbery simpliciter that is before me you are sentenced to be imprisoned for a period of 15 months. I direct that five months of that sentence be served cumulatively upon the sentence imposed upon the earlier indictment which gives an effective head sentence of 26 months. I am saying I will give a minimum term of 16 months. Does that breach that
60 per cent rule? I did the arithmetic last night, I think I am all right. Yes. I think that is all right. I think that works out to about - - -39MR GRANT: Sixteen months.
40HIS HONOUR: That is all right, yes. Yes, minimum term of 16 months.
41I want to get this right, Mr Waters. That is the total overall effective sentence. There is 121 days PSD. I have not missed any there. The 180 days related back to the earlier one, which I have taken out of the equation, and I cannot bring that back.
42MR WATERS: No.
43HIS HONOUR: It has already been done if you know what I mean.
44MR WATERS: Yes.
45HIS HONOUR: So 12l days is it I think.
46MR WATERS: Yes.
47HIS HONOUR: All right. I direct that 121 days be reckoned as having been served under this sentence.
48Section 6AAA in this situation is completely meaningless and I do not propose to give one. I think I have made all the other orders that are needed. I am also looking very much, as I think I have already indicated, in your circumstances, Kane, one of totality, and if at all possible to avoid a situation of you being institutionalised, though my fears are great on that score.
49Anything else I need to do?
50MR GRANT: There were three summary - - -
51HIS HONOUR: Loss of licence is here somewhere too, is there not?
52MR GRANT: Yes, and there are three summary charges that relate to the earlier indictment.
53HIS HONOUR: Yes. What are they?
54MR GRANT: There was a charge relating to failure to stop on police directions, Charge 12, which is a maximum penalty of 120 penalty units or 12 months' imprisonment; being a learner driver without a supervising driver, maximum penalty of 20 penalty units; and possessing a controlled weapon without excuse, that is Charge 14, is a maximum penalty - - -
55HIS HONOUR: All right. The controlled weapon I will give seven days concurrent. The other two charges I will convict and discharge.
56MR GRANT: If Your Honour pleases
57MR WATERS: As Your Honour pleases.
58HIS HONOUR: Yes, does that all make sense, Mr Waters?
59MR WATERS: Yes. I have got all that.
60HIS HONOUR: Yes. Do you follow everything, Ms Theocharous? You are all right with - - -
61MR THEOCHAROUS: Yes, Your Honour.
62MR GRANT: And just in terms of the licence, Your Honour, it is - - -
63HIS HONOUR: Yes, that - yes.
64MR GRANT: (Indistinct) is that the licence be cancelled and he be disqualified for not less than 12 months. That is for the - - -
65HIS HONOUR: Which charge is that on?
66MR GRANT: That is for the failing to stop on police direction, Charge - the summary Charge 11. The others are discretionary
67HIS HONOUR: Convict and discharged, do I still have to do that? Good question?
68MR GRANT: I think Your Honour does because of the fact that he has been found or convicted.
69HIS HONOUR: I am not going to dismiss it as trifling, obviously, so, yes.
70MR GRANT: It is - - -
71HIS HONOUR: No, all right, on that charge any licence to drive a motor vehicle is hereby cancelled and disqualified from obtaining another one for 12 months. The others are all optional I think. I can do it on armed robbery of a car but I am not going to - he only took - he only did the armed robbery of the car keys.
72MR GRANT: That is - yes.
73HIS HONOUR: Yes. All right, so that is all right. Yes, all right. Good luck, fellas.
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