Director of Public Prosecutions v Mobourne and Harrison
[2020] VCC 557
•5 May 2020
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY KOORI COURT | Revised Not Restricted Suitable for Publication |
Case Nos. CR-19-02098 and
CR-19-01923
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB MOBOURNE AND RAYMOND HARRISON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 3 February 2020 | |
DATE OF SENTENCE: | 5 May 2020 | |
CASE MAY BE CITED AS: | DPP v Mobourne & Harrison | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 557 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – armed robbery(Mobourne & Harrison) – related summary charges – commit indictable offence on bail and breach of bail condition (Mobourne) – early plea of guilty entered – discount applied for plea of guilty – Sentencing Conversation – Koori Court Division – mitigation of penalty – consideration of the criteria listed in s5(2H) Sentencing Act 1991 – non custodial orders imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused - Mobourne | Ms T Theocharous | Kurnai Legal |
For the Accused – Harrison Ms K Mc Farlene McFarlane Criminal Lawyers
HER HONOUR:
1 Raymond Harrison and Jacob Mobourne, you have both pleaded guilty in respect to one charge of armed robbery. The charge is serious, and that is reflected in the maximum penalty, being 25 years’ imprisonment or 3,000 penalty units.
2 In addition, Jacob Mobourne you have pleaded guilty to two related summary charges namely, commit an indictable offence whilst on bail and contravene a conduct condition of bail. The maximum penalty in respect to commit an indictable offence whilst on bail and contravene a conduct condition of bail is 30 penalty units or three months’ imprisonment.
3 You have both admitted your prior criminal histories.
4 Raymond Harrison, you have seven prior appearances in the Latrobe Valley Children’s Court that relate to a variety of offences that includes dishonesty offences, criminal damage, fail to answer bail, breach of probation order, burglary, aggravated burglary, recklessly cause injury, driving offences and reckless conduct endangering life, for which you have received a variety of dispositions including without conviction adjourned undertakings to be of good behaviour and without conviction probation.
5 This is the first time that you have appeared in the adult jurisdiction. You are aged 24 years, and you were 23 at the time of the offending.
6 Jacob Mobourne, you have four prior court appearances, three in the Latrobe Valley Children’s Court and one appearance in the Latrobe Valley Magistrates’ Court. Those appearances relate to a variety of offences including dishonesty offences, trespass, burglary, possess controlled weapon without excuse and bail-related offending, as well as affray, driving offences and possess methylamphetamine. In the past, you have been dealt with by without conviction adjourned undertakings to be of good behaviour and without conviction probation orders.
7 This is also your first time in the adult jurisdiction.
8 You were 19 years at the time of the offending, and you are now aged 20.
9 You are a young offender under the Sentencing Act 1991. The principles of R v Mills[1] apply and therefore significant weight is placed on your rehabilitation.
[1][1998] 4 VR 235
10 I shall proceed to sentence you both based on the Prosecution Opening that was read to the court at the plea hearing.
11 Briefly the circumstances are that on 21 June 2019 you both attended a funeral for a family member in Drouin. You and a cousin, Tyrone Mobourne returned to Moe together by train. Later that evening the three of you regrouped in Moe. You were consuming drugs, including cannabis and methylamphetamine, and drinking alcohol.
12 Following a discussion, it was decided that you would both go to Alan Cane’s place in Moe. You planned to steal both his vehicle and cannabis. Cane is aged 33. Mobourne, you armed yourself with a hammer and Harrison, you armed yourself with a screwdriver. You both walked up to Cane’s front door and knocked on the door. Cane answered the door. Harrison, you asked him for a glass of water. Cane let you both in and then went and sat down on his couch in the living room. He told you, Harrison, to help yourself to some water from the kitchen. Mobourne, you remained standing in the lounge room.
13 Harrison, when you returned to the lounge room, Mobourne was standing there with the hammer out. Harrison, you then went and sat on the couch next to Cane. You saw a bag of cannabis and said to Cane, “I thought you didn’t have any?” to which he replied “Yeah, nah, I’ve only got this man”.
14 Mobourne, you then grabbed Cane’s keys that were sitting on the floor next to his feet. Cane asked you what you were doing. Simultaneously, he looked at you, Harrison, and noticed that you had pulled out a screwdriver that you were holding by your waist. You threatened Cane that if he did anything that you would stab him. Harrison you grabbed the bag of cannabis. Mobourne you pointed the hammer at Cane and looked like you were going to hit him. You both then left the house. You tried but failed to start the complainant’s vehicle.
15 Whilst seated inside the vehicle, Mobourne, you went through the glove box and stole a second set of keys belonging to the vehicle. You both then fled on foot and returned to the place in Moe where you had previously been consuming drugs and alcohol.
16 Police were informed about what had occurred and subsequently you were both arrested.
17 At the time of the incident, Mobourne, you were subject to bail on unrelated matters. There was a curfew condition. You were supposed to stay at your residence at 63 Jackson Avenue, Sale between 9.00pm and 7.00am unless attending a medical appointment or in the company of a representative from Youth Justice. You contravened that bail condition by not being home, between the hours of 9.00pm and 7.00am. By your actions, you committed the indictable offence, namely armed robbery whilst on bail.
18 Harrison you were arrested on 22 June 2019. Police executed a search warrant at your address. You were compliant with police and pointed out the screwdriver used in the armed robbery and the clothing that was worn.
19 You were taken to the Moe Police Station and during the formal interview you made partial admissions regarding the armed robbery as well as the co-offender, Mobourne’s, involvement.
20 On the day following, namely, Sunday, 23 June 2019, you voluntarily re-attended at the Moe Police Station and made a further statement during which you made full admissions in relation to the offending. Police noted that you appeared to be remorseful and disappointed with your actions.
21 Mobourne, you were arrested on 26 June 2019, but were later deemed not fit for interview. Ultimately, you made a “no comment” record of interview.
22 It is accepted by the prosecution that you both pleaded guilty at the earliest opportunity and therefore a sentencing discount applies.
23 Your matters proceeded in the County Koori Court division and a sentencing conversation was held on 3 February 2020. Uncle Lloyd Hood and Auntie Maureen Hood were the elders and respected persons that were present.
24 You were both attentive and genuinely participated in the Sentencing Conversation. This is a factor that mitigates punishment and that has been recognised by the Court of Appeal in Victoria.[2]
[2]See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.
25 I have had regard to your personal histories and backgrounds.
26 Raymond Harrison, you are Aboriginal man of Gunai Kurnai descent. You were born in Gippsland and have lived in the area all your life. You were raised by your mother, Annette. Tragically, your father, Raymond Harrison senior, died before your birth. Your mother had two other sons. Her life has been impacted greatly by the effects of intergenerational trauma. She suffers from alcohol addiction and you were exposed to drugs from a young age.
27 Your childhood was very disrupted. You did not have any positive male role models growing up. The family moved around a lot and you struggled academically. You left school at age 13 and went to TAFE. You have a boilermaker’s qualification.
28 You do not have any work history. You survive on Centerlink benefits and are currently unemployed. You live with your partner, Yvonne, in a rental property in Newborough. You have been together in a relationship for nine years and you are both expecting your first child together. Yvonne assists you greatly with your activities of daily living.
29 You have a long-term history of drug addiction commencing to use cannabis when you were only nine years of age. Your life has been impacted greatly through your addiction to drugs. There have been times when you have experienced psychotic symptoms associated with your illicit drug use.
30 I accept that your background is one that can be characterised as one where you have experienced significant and profound trauma and depravation and I have applied the principles in the case of Bugmy. [3] Those effects do not diminish with the passage of time or repeated offending and I have given full weight to those principles in formulating the appropriate sentence.
[3]Bugmy v The Queen (2003) 249 CLR 571, 592-593 [37],594-5[42]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (“Bugmy”)
31 You have been diagnosed as a schizophrenic. In the past there have been multiple hospital admissions to the Psychiatric Inpatient Unit at the Latrobe Regional Hospital related to non-compliance with treatment and medications coupled with a combination of heavy drug and alcohol use.
32 Dr Neeraj Gupta, consultant psychiatrist, currently treats you and you receive treatment on a voluntary basis. Your condition is stable. You receive regular depo antipsychotic medication at the Central Gippsland Aboriginal Health Service every four weeks.
33 Since July 2019, your compliance with treatment has been exemplary. Prior to that, you were attending Dr Gupta only sporadically with some inpatient hospital psychiatric admissions attributable to non-compliance.
34 Dr Gupta confirms that continuing engagement with health services for your condition is recommended. He also recommends that you avoid illicit substances to avoid the risk of your mental health deteriorating.
35 Following your arrest and release on bail, you have made excellent progress. You now demonstrate a good understanding of the nature of your mental illness and the link between using drugs and your mental health deteriorating.
36 You have not had any relapse of psychotic symptoms since you have been having the depo injections and there are no signs of psychosis or mood disorder.
37 You have remained abstinent from cannabis for nearly 12 months. You admit to drinking some alcohol and smoking cigarettes, but you denied heavy use.
38 Dr Gupta considers that your prognosis is fair provided you remain compliant with medications and that you avoid illicit substance use.
39 You also see Mr Alex, your case manager and Dr Shane Robbins, general practitioner at Central Gippsland Aboriginal Health Service.
40 You are currently undertaking studies, being a Certificate 2 in Work Education at the Gippsland TAFE as well as studies concerning Aboriginal culture, history and community at the TAFE.
41 At the sentencing conversation you were supported by your girlfriend, Yvonne, some friends, as well as Cliff Wandin, who runs the Choices Program and Kerry Knight, a local justice worker, who is employed by the East Gippsland Aboriginal Cooperative.
42 Uncle Lloyd challenged you in relation to the offending and underlined how serious your offending behaviour was. He told you regardless of who people are that you should not threaten them and steal their property. He urged you to consider the consequences of your actions and emphasised the need for you to change your behaviour in the future. He emphasised how important it was for you to focus on being healthy, to give up drugs and to make better decisions. He encouraged you to accept all the support being provided to you in the community now and in the future, including any programs that may be offered to you such as Wulgunggo Ngalu.
43 Auntie Maureen emphasised the importance of you continuing to accept treatment for your schizophrenia and the need for you to properly care for yourself. She said that you should not be ashamed if there is a need for more assistance in the future. She emphasised the importance of saying “no” to negative influences and that you should mix with better role models.
44 Ms Kerry Knight has worked with you since November 2019. She confirmed that you have been highly motivated to make positive changes with your life. She has referred you to Michael Liddy, a drug and alcohol counsellor whom you have seen for counselling. She also linked you to the Choices Program run by Cliff Wandin.
45 Ms Knight said that you are a polite and friendly person. She is prepared to continue to work with you in the future. She states that you have been consistent in your commitment to seek ongoing support and assistance. She confirmed that she has no concerns that you are using drugs currently and that she has available to her various options if there were to be a relapse.
46 You have indicated a strong desire to go to Wulgunggo Ngalu to complete your Community Correction Order and you understand what is involved with that program.
47 Wulgunggo Ngalu is a Statewide culturally appropriate residential diversion program located in Yarram for adult Aboriginal men who are on Community Correction Orders as a result of being found guilty of a criminal offence. It provides a culturally appropriate residential program for Aboriginal offenders. The emphasis is on connecting or reconnecting with culture and on individually tailored programs that combine cultural healing with the development of skills to promote a positive and healthy future.
48 Ms Knight is willing to support you to complete any court ordered treatment including a Community Correction Order. She can assist you with transport to Wulgunggo Ngalu, and for the future she can work with you to refer you to various employment agencies in Morwell to try to support you to find some work. She confirmed that you do have insight.
49 Cliff Wandin also spoke on your behalf. He confirmed that you have been voluntarily working with him on changing your behaviours. You have expressed to him your shame about being involved in what happened and that your desire is to change for the sake of your family and girlfriend.
50 I accept that you do have good insight into your offending behaviour and the link between offending, not being properly medicated and taking drugs.
51 Given your expressed desire to change, ongoing support from your treating doctors and other support services, as well as your behaviour since being charged with this offending, I consider that you do have reasonable rehabilitation prospects. I propose to formulate an order that will support you in the community to assist you in achieving those goals. You remain a relatively young man, and your rehabilitation is still an important factor.
52 It is agreed that you pleaded guilty at a very early stage. There is real utility in your plea. Importantly, the victim was spared being cross-examined at the committal hearing or trial. Given your plea of guilt and your high level of co-operation with the police and the full admissions. I am satisfied that you are genuinely remorseful. You have facilitated justice and your sentence will be discounted accordingly.
53 Armed robbery is a Category 2 offence and therefore a Court must impose a sentence of imprisonment (without a Community Correction Order) unless special conditions are met.
54 Mr Moore, the prosecutor, agreed that in the circumstances of your case that one or more of those exceptions has application.
55 I accept that through the provision of the statement provided on 23 June 2019 that your assisted authorities in the investigation or prosecution of the offence. Further, I accept on balance of probabilities, that at the time this offence was committed you had impaired mental functioning (schizophrenia) that is causally linked to the commission of the offence and substantially reduces your culpability and that as a consequence of your impaired mental functioning you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
56 Dr Robins, your treating general practitioner, confirms that with the diagnosis of schizophrenia there is always the potential to relapse, particularly if medications are missed, or if other substances are used, and relapses have the potential to impact on behaviour and decision making. You were not properly medicated at the time when you were using drugs.
57 Therefore, I propose to impose a non-custodial order.
58 Following the sentencing conversation, you have been assessed as being suitable for a Community Correction Order. The report dated 24 February 2020 confirms that you do not have any prior criminal convictions in the adult jurisdiction.
59 You were assessed as a high risk of reoffending given your history of substance abuse and mental health issues. Your motivation and good attitude towards completing treatment and getting the most out of the Community Correction Order was noted.
60 Recommendations were made in respect to supervision, treatment and assessment for drug use and mental health as well as offending behaviour programs that would address your underlying addictions to drugs as well as be able to properly monitor your mental health and to provide for you to undertake the program at Wulgunggo Ngalu in the event that program becomes available.
61 Notwithstanding community work has been recommended, I do not propose to impose that as a condition.
62 It is important that you focus on continuing with your educational studies and take up the opportunity provided by Ms Knight to explore employment options in the future.
63 Currently there is no community work being undertaken because of the COVID‑19 pandemic. To impose the requirement of community work upon you would be too onerous having regard to your complex and multiple problems. You are currently positively engaged with all your therapeutic and community support services and I do not wish to overburden you.
64 Ultimately it is in the best interests of the community that you are supported in the community to be able to complete the order and remain crime-free.
65 In formulating the appropriate sentence, I have had regard to the seriousness of the offending, the impact of the offending on the victim, as well as the need to emphasise deterrence, protection of the community and denunciation.
66 There is no Victim Impact Statement however common sense dictates that Mr Kane would have been disturbed by your actions in company with Mr Mobourne.
67 Overall, I have assessed this as being at the lower end of the scale of seriousness for the offence of armed robbery.
68 I must impose just punishment. I consider that the proposed Community Correction Order can be put in place to support you to address your underlying offending behaviours and to better enhance your prospects of rehabilitation.
69 The terms of the proposed order have been explained to you this morning by your counsel, Ms McFarlane. You have consented to the proposed order and understand its effect and the consequences of any breach.
70 The formal Court orders are in respect to the one charge of armed robbery, that you will be convicted and placed on a Community Correction Order that will run for a period of 18 months commencing from today’s date with provision for supervision, drug treatment and assessment including testing, assessment and treatment for mental health, as well as other offending behaviour programs.
71 Jacob Mobourne, you are an Aboriginal who has connections to the Gunai Kurnai and Yorta Yorta.
72 You are the middle of three children born to your parents, Roxanne Mobourne and Watson Pepper. Your parents separated when you were young. Your mother re-partnered with Mr Terrick, who is the father of your three youngest siblings.
73 Currently, you live with your mother, stepfather and three younger siblings in Sale. With the assistance of Youth Justice, a caravan has been rented for your sole use at the property and there is an application to build a unit at the property through Kids Under Cover currently pending.
74 As a young child you were witness to domestic violence and your parents frequently used drugs and alcohol. Your childhood was characterised by extreme poverty and neglect.
75 You have several coexisting medical issues. You have experienced persistent middle ear infections and are profoundly deaf. You are awaiting surgery at the Royal Childrens’ Hospital for a bone graft to repair a cleft palate. You have poor dentition and you are awaiting a full or partial clearance of your teeth and removal of impacted molars. There is also a foreign body in your cheek that must be surgically removed.
76 Many of those conditions were left untreated during childhood. Fortunately, you are now being supported by Youth Justice and Qantum to address all those conditions.
77 You are now seeing Dr Nahill, general practitioner, Hearing Australia for your deafness, a nutritionist and Sarah Schulter, psychologist.
78 There is a history of trauma in your family as detailed in the submissions. Many of your close relatives have died prematurely which has had a devastating impact upon you and your extended family members.
79 You have an intellectual disability. There is a statement of intellectual disability under the Disability Act 2006 dated 18 April 2018.
80 You have many strong supports in the community. Samantha Johnson at CoAbility Services has provided support and advocacy to you and is working to set up an NDIS plan on your behalf.
81 You have had a long history of involvement with Youth Justice and Disability Justice. Several people who are involved in your care were present at the plea hearing, as well as your grandmother, Kathy Harrison, your Youth Justice workers and your Disability Justice worker, Jemma Hall, Case Manager, Youth Justice Community Support Service, Quantum Support Services.
82 Ms Johnson, said that you have been working effectively with her for about a year, and that you were very willing to engage. You have acknowledged that what you did was wrong and are now wanting to make positive plans. She is working with you to assist you to be set up properly for independent living.
83 Both she and your other worker, Jemma, described you as a very kind and respectful person who always looks out for your family. They said that you were very patient whenever there are any setbacks.
84 You have had a long-term addiction to cannabis and Ice, and at the time of the hearing you were completing a detox program at the Sale Hospital. You have had five or six previous attempts at detoxification.
85 You have had support for your drug problem from Duane Oldham an alcohol and drug counsellor from the Youth Support and Advocacy Service (YSAS) Sale.
86 Ray Naidu from Ramahyuck Social and Emotional Wellbeing Program also attended, and he confirms that you enjoy a good relationship with him.
87 Mr Josh Hart, Koori Youth Justice Program, Anglicare, confirmed that he has been involved with you and supporting you as required.
88 Currently, a NDIS plan is being developed for you to provide you with further supports in the community. For the future, you have expressed a desire to undertake some training in life skills and further assistance with your literacy skills.
89 During the sentencing conversation, Uncle Lloyd emphasised the serious nature of your offending and the risk of you going to jail if you do not change your behaviour and cease taking drugs. He emphasised that you are still relatively young man who needs to make plans for your future. He emphasised how important it was to the Aboriginal community for you to stop offending and that too many young people have died because of drugs. He urged you to take up all the opportunities offered so that you will not get bored and start using drugs and reoffend.
90 Auntie Maureen emphasised the need for you to stop using drugs and alcohol and to deal with all your issues, so that you can be a better and healthier person who is a proper role model for your younger siblings. She urged you to take up all the support that has been provided and to keep working through all your various medical and other issues, so that you are feeling healthier.
91 You are a youthful offender and your rehabilitation is an important aspect of your sentence.
92 I accept that your background is also one that can be characterised as one where you have experienced significant and profound trauma and depravation and I have applied the principles in the case of Bugmy. [4] Those effects do not diminish with the passage of time or repeated offending and I have given full weight to those principles in formulating the appropriate sentence.
[4]Bugmy v The Queen (2003) 249 CLR 571, 592-593 [37],594-5[42]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (“Bugmy”)
93 Having regard to the extensive supports that you have in the community and the real engagement that has been demonstrated whilst you have been on supervised bail, I consider that you do have reasonable prospects for rehabilitation. They will be enhanced if you continue to be supported and provided with appropriate ongoing supervision and support.
94 You pleaded guilty at a very early stage. There is real utility in your plea. Importantly, the victim was spared being cross-examined at the committal hearing or trial. I am satisfied that you are genuinely remorseful. Your have facilitated justice and your sentence will be discounted accordingly.
95 Given your documented intellectual disability demonstrated by lack of consequential thinking, I accept on balance of probabilities, that you suffer impaired mental functioning that can be causally linked to the offending and substantially reduces your culpability. (s5(2H)(c)(i)). Furthermore, I am satisfied that your intellectual disability would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. (s5(2H)(c)(ii)).
96 What that means is that no term of imprisonment will be imposed .
97 I have received a statement of intellectual disability dated 18 April 2018 together with a Justice Plan dated 13 March 2020 and a disability overview report dated 13 March 2020.
98 In addition, I have received an extended pre-sentence assessment outcome report which says that you are suitable for a Community Correction Order. The report notes that you have no prior convictions in the adult jurisdiction. You are assessed as being high risk of reoffending with a history of substance use and pro-criminal attitude. You are working towards changing your behaviour by working closely with your alcohol and drug counsellor, engaging in pro-social activities, demonstrating motivation and to complete any necessary treatment.
99 It is recommended that there be supervision, treatment for drug and alcohol dependency and an order that you comply with the Justice Plan.
100 The Justice Plan recommends that you engage with the disability justice coordinator from the South Division of the Department of Health and Human Services and agree to any forensic disability supports and treatment that are identified by such coordinator. I accept those recommendations.
101 Ultimately, I have decided that a Community Correction Order with a Justice Plan condition is an appropriate disposition, taking into account all matters put in mitigation and having regard to the gravity of the offending.
102 The Crown has accepted that submission.
103 I have taken into account the fact that you genuinely participated in the sentencing conversation. It was a vigorous and challenging process. You demonstrated appropriate remorse and accepted responsibility for your wrongdoing. You do understand why it is that you offend, and you have clearly stated your expressed intention is that you will do everything you can do by way of completing programs in order to facilitate your rehabilitation. I have that into account in mitigation in your favour.
104 I have regard to the guideline sentencing judgment in Boulton v R[5]and it is accepted that a Community Correction Order of itself, is punishment and is capable of being a deterrent to others and providing for specific deterrence to individuals. The Court, at paragraph [131] 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.
[5][2014] VSCA 342
105 The formal Court orders are as follows.
106 In respect to the one charge of armed robbery and commit indictable offence whilst on bail and contravene a condition of bail, you will be convicted and placed on a Community Correction Order for a period of 18 months with supervision, treatment for drug and alcohol dependency and a further condition that you comply with the Justice Plan as I have explained.
107 You have indicated your willingness to accept the conditions of the order and consent to it being made.
108 You have had explained the consequences of a breach and you understand if you do not comply with the order, then you will be dealt with separately for that and you may face being re-sentenced.
109 I make the disposal order sought.
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