Director of Public Prosecutions v Mobourne (Tyrone)
[2020] VCC 533
•4 May 2020
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02089
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE MOBOURNE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 4 February, 23 March and 4 May 2020 | |
DATE OF SENTENCE: | 4 May 2020 | |
CASE MAY BE CITED AS: | DPP v Mobourne (Tyrone) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 533 | |
REASONS FOR SENTENCE
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Criminal law- sentencing – plea of guilty to one charge of armed robbery- Sentencing Conversation – Koori Court Division – discount for plea of guilty – combination sentence imposed. The Queen v Steelie Morgan [2010] VSCA 14; Honeysett v The Queen (2018) 56 VR 375 DPP v Heyfron [2019] VSCA 130; R v Mills [1998] 4 VR 235; Bugmy v R (2013) 249 CLR 571; Boulton v The Queen (2014) 46 VR 308.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | A Moore | Abbey Hogan, Solicitor to Public Prosecutions |
| For the Accused | K Mildenhall | Tyler Tipping & Woods |
HER HONOUR:
1 Tyrone Mobourne, you have pleaded guilty to one charge of armed robbery. That is a serious charge, as reflected in the maximum penalty prescribed, namely 25 years’ imprisonment or 3,000 penalty units.
2 You have admitted your prior criminal history. There are some eight appearances in the Latrobe Valley Children’s Court, and there are two matters in the Latrobe Valley Magistrates’ Court.
3 In the past you have been before the courts in respect to crimes of dishonesty, such as theft and burglary, robbery, some crimes of violence against the person, assaults, criminal damage, bail related charges and other offences, including relevantly a charge of armed robbery that was dealt with on 20 November 2015 at the Latrobe Valley Children’s Court, amongst other charges.
4 You have had a variety of dispositions imposed in the past. In the Children’s Court, a without conviction adjourned undertaking and without conviction probation orders were made as well as a Youth Supervision Order.
5 In the Magistrates’ Court, you have been dealt with in relation to charges of theft of a motor vehicle, handling stolen goods, intentionally damage property, commit an indictable offence whilst on bail, driving-related offences, dealing with property suspected of being the proceeds of crime, carrying a controlled weapon without excuse, go equipped to steal, committing an indictable offence whilst on bail, threats to inflict serious injury, retention of stolen goods, and trespass.
6 You were convicted for various offences on 11 July 2018 and placed on a Community Correction Order with a Justice Plan with conditions that you perform 100 hours community work and undergo assessment and treatment for drug abuse or dependency. The Community Correction Order was imposed for a period of 12 months.
7 The armed robbery occurred on 5 February 2019 and, therefore, it contravenes the Community Correction Order that was imposed. That is an aggravating feature of your offending.
8 The circumstances of your offending were outlined by the prosecutor prior to the sentencing conversation.
9 Prior to the offending, you were smoking a mix of drugs with Jacob Mobourne (aged 18) and Lenny Fenton (aged 16). At about 6.45pm a cousin, Kane Austin (aged 21), picked the group up in his vehicle. You all proceeded to drive around Traralgon.
10 Kane Austin produced an imitation side-by-side double barrel shotgun whilst you were in the vehicle. The shotgun had the firing pin removed and sticky tape placed around the barrel and handle. You all discussed doing something.
11 The group drove to the Morwell Top Pub BWS located at Princes Drive, Morwell, arriving at about 8.44pm. Luke Simms-Jenkins, a bottle shop attendant, was working in the back cool room. You and Jacob Mobourne walked up some stairs into the shop. You were carrying the imitation firearm under his arm and Jacob was armed with a knife, which he held in his hand.
12 You both entered the bottle shop. Jacob picked up a 10-pack of Jim Beam cans and proceeded to leave the store. Luke Simms-Jenkins heard the buzzer and began to yell at you both as you ran away. You both turned around and then produced your weapons and directed Luke Simms-Jenkins back into the bottle shop. You then demanded in an aggressive tone for him to open the safe. You pointed the imitation firearm towards him and threatened to shoot the store attendant if he did not comply.
13 Mr Simms-Jenkins was unable to open the safe but opened the cash register. Jacob approached him at the cash register whilst you were pacing around in the driveway area still armed with the imitation shotgun and removed the plastic tray from the cash register which contained $382.75. You then both fled downstairs to the awaiting vehicle and left the scene.
14 You were given $50 of the money from the cash register.
15 Police arrested you on 10 July 2019. You participated in a record of interview with an independent third person present during which you made full admissions in relation to the armed robbery, apart from threatening the complainant. You also named the three other co-offenders.
16 On 26 July 2019 Jacob Mobourne was arrested by police but he was deemed unfit to be interviewed. Eventually, he made a “no comment” record of interview.
17 The other two males Kane Austin and Lenny Fenton who were in the car were also arrested. One refused to be interviewed and the other one was interviewed in the presence of an independent third party.
18 As far as the status of the co-accused is concerned, no charges have been laid against Jacob Mobourne. Kane Austin and Lenny Fenton were charged with armed robbery, but the charges were later withdrawn. Lenny Fenton has been charged with handling stolen goods relating to the consumption of the stolen alcohol. His matter will be dealt with in the Children’s Court at some stage in the future.
19 Tyrone Mobourne this offending has had serious consequences. Luke Simms-Jenkins, the attendant, sets out in his victim impact statement in graphic form how he was terrified. He thought that it was the end of his life and that he was about to be shot and that he would never see his wife again.
20 He has found it very difficult to adjust to being back in the workforce. He has left two jobs since the incident, the first being in a bottle shop and the other being at Big W. Both jobs were in retail and he found it difficult to settle due to his anxiety. He is currently unemployed. He no longer feels safe walking around the streets where he lives. Emotionally he is very upset by what occurred. He is really inhibited socially and does not like being away from his wife for too long. The impacts of the offending are ongoing.
21 The context of the offending was that you had been involved with your cousins smoking drugs when Kane Austin made the suggestion that you all do something together and from that the plan to rob the liquor store was made. Given that both you and your co-offender were armed, it is a serious example of armed robbery. On behalf of the community I must denounce your behaviour.
22 I have had regard to your personal history and background. You are now aged 21 and were 20 at the time of the offending. You are an Aboriginal man who identifies as Gunai Kurnai. You were born and raised in the Gippsland area.
23 You are relatively youthful, and your rehabilitation remains an important sentencing consideration.
24 You are the only child born to your parents, Bernadette Mobourne (deceased), and Michael Smith. You have a younger half-brother and half-sister. Your mother died in 2014 when you were aged about 15 years. You have also experienced other family losses. Tragically many of your direct relatives have died young.
25 During your childhood you moved about quite a bit. From about the age eight, you were the subject of a Custody to the Secretary Order and placed in out-of-home care. There were several placements, including residential care, kinship placements and with your mother. Your father did not have any involvement in your care during your childhood.
26 Growing up there were concerns about your exposure to domestic violence and substance use. At age 14 you moved in with your uncle. You lived independently for a short time from age 17 and you have also lived with your grandmother and girlfriend, Tamika Rose.
27 You have been in a relationship for some six to seven years with Tamika Rose with whom you have a daughter who is aged two. You plan to live with them upon your eventual release.
28 You were found to have an intellectual disability at age 15 and became a registered client of Disability Client Services.
29 You have a long-term history of alcohol and drug abuse commencing at the tender age of eleven. You initially used cannabis and then progressed to using methamphetamines. Your drug use escalated following your mother’s death.
30 In mid-2015 you attended Baroona Healing Centre, Echuca and have had some ongoing drug and alcohol counselling through the Gippsland East Gippsland Aboriginal Co-Op (GEGAC).
31 You have a keen interest in playing football and previously played with Morwell Tigers. You wish to take up football again.
32 Due to your disrupted childhood, your schooling was also very disrupted. You attended several different schools. Your learning was severely impacted because of your identified intellectual disability. You have difficulties with verbal comprehension and working memory. You have little post primary education. In the past, you have attended some units at TAFE Gippsland, but have not completed any courses.
33 I accept that your upbringing was marked by exposure to family violence, the absence of strong male role models, separation from your natural parents, early abuse of alcohol and use of illicit drugs.
34 I accept that the circumstances of your depravation, abuse and other social disadvantage that occurred during your formative years were profound and that has not diminished with the passage of time and is likely to have profound and lasting consequences.
35 I have applied the principles in Bugmy v R[1] approved in the case of Marrah v R in the Victorian Court of Appeal[2]
[1][2013] HCA 37; 249 CLR 571, [24]
[2]Marrah v R [2014] VSCA 119 [16]
36 I have had regard to all the powerful mitigating factors that were highlighted on your behalf by Ms Mildenhall.
37 I accept that you now understand that what you did was wrong and that you sincerely regret your actions. You were frank and open with the police in the record of interview and made admissions that the offending was stupid and that it is the sort of thing you do not want to do again.
38 You genuinely participated in the Sentencing Conversation. You were open and frank in your discussions with Uncle Lloyd Hood and Aunty Margaret Atkinson. Your genuine participation has been taken into account in your favour[3].
[3]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.
39 You were supported in the sentencing conversation by your Grandmother, Aunty Kath and your cousin, Anita Harrison.
40 You openly acknowledged the harm caused to the victim and acknowledged that the offending was serious.
41 Uncle Lloyd urged you to seriously reflect on your behaviour and said that you should take responsibility for your actions. He emphasised that there was no excuse for your bad behaviour and what you did to the store attendant must be condemned. He is entitled to feel safe when working and your actions have undermined his ability to work.
42 You indicated that time in jail has been difficult and that you plan on leaving prison to seek work in a local abattoir. You are currently being held at Ravenhall Correctional Centre and you are working daily in the kitchen and in catering. In the past you have not had any meaningful work experience.
43 Uncle Lloyd suggested that you take steps to make inquiries to find out who you are and your connections to Aboriginal culture so that you act more responsibly in the future. He said that it is necessary for you to give respect to others so that you can be respected. He stressed how important it was for you to focus on your family and take responsibility.
44 Aunty Margaret urged you to be proud of your Aboriginality and to work hard to overcome your drug addiction so that you can be a more positive member of your family and community.
45 You indicated to the elders a strong desire to address your drug addiction and you were open to having support from Kerry Knight, the local Justice worker at the Gippsland and East Gippsland Aboriginal Cooperative, who was present during the sentencing conversation.
46 You also stated that you would like to be considered to attend Wullgungo Ngalu Learning Place.
47 I accept that you now are genuine insofar as your remorse is concerned and that you accept the need for ongoing support in the community.
48 Overall, I assess your prospects for rehabilitation to be reasonable. You do need to make good your expressed intention to take up the support that has been offered in the community.
49 Armed robbery is a category 2 offence and therefore the Court must make an order for a sentence of imprisonment unless it can be demonstrated one of the exceptions as set out in the legislation applies.
50 Section 5(2H)(a) of the Sentencing Act provides that one exception is where “the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of the offence”.
51 At the plea hearing, the prosecutor, Mr Moore, confirmed that it was accepted that you have provided assistance to the prosecution. When you were interviewed and shown the CCTV footage that showed the two armed and disguised offenders. You could be recognised, however the other offender could not. You were extremely frank with police in relation to your role and you identified the other co-accused men, including the co-accused, Jacob Mobourne.
52 If not for your co‑operation, none of the other three offenders would have come under police suspicion. Mr Moore therefore conceded that you have provided significant assistance to the police. The Crown accepts that exception (a) criteria has been made out.
53 Ms Mildenhall submitted that there is also evidence that the Court can rely on to make a finding that you suffered impaired mental functioning that was causally linked to the commission of the offence, which also substantially reduces your culpability (s5(2H)(c)(i)), and that your impaired mental functioning results in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment (s5(2H)(c)(ii)).
54 As was discussed with Ms Mildenhall during the course of the plea hearing, having regard to the contents of the report from Mr M Jackson, clinical neuropsychologist, dated 4 November 2019 together with addendum report of 27 January 2020, I am satisfied that you do have an intellectual disability and that you have suffered from learning difficulties in the past.
55 You have a full-scale IQ of 67 which is in the extremely low range consistent with mild intellectual disability.
56 Furthermore, Mr Jackson believes that you may have a mild acquired brain injury due to substance use. He considers that you do understand the unlawfulness of your actions, although it was difficult to gauge your knowledge of the seriousness of these actions.
57 Mr Jackson acknowledges that a sentence of imprisonment has a potential to impact upon your mental health, particularly given you are reporting feeling anxious in prison and have demonstrated symptoms of anxiety and stress.
58 Given Mr Jackson’s findings, I do not accept that at the time of the offending, there is evidence that you had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your culpability. He clearly states that your mild intellectual disability and possible mild acquired brain injury did not obscure your intent to commit the offences.
59 I have however had regard to his finding that a combination of your intellectual disability and possible mild acquired brain injury did impair your ability to make calm and rational choices and to think clearly. Your condition also means that you find jail more burdensome than others who do not suffer from your disability.
60 I have taken into account his findings and accept that there is a need to modestly reduce your moral culpability for your offending and to moderate general and specific deterrence. I have further had regard to your condition insofar as formulating a punishment that is just in all the circumstances.
61 Since the sentencing conversation the COVID‑19 pandemic has been declared with restrictions being put in place. All personal gaol visits have been suspended and partial lockdowns are in place. I accept that this has increased the burden of imprisonment upon you and made your time spent in custody more onerous than that which you faced prior to the outbreak. I have taken that into consideration.
62 I have had regard to your early plea of guilty. There is real utility in your plea. You have spared the victim the further trauma of having to come to Court to give evidence at your trial. You have facilitated justice so that your sentence will be discounted accordingly.
63 You were fully co-operative with police at the time you were arrested as earlier described.
64 I accept that you are genuinely remorseful and that is indicated by your early plea as well as your stated expressions of remorse.
65 You genuinely participated in the Koori Court sentencing process and you have reflected on your behaviour and now understand the need to change your behaviour.
66 You have expressed a keen interest in seeking help and you are interested in being assessed to attend the program at Wulgungoo Naglu Learning Place.
67 Wulgunggo Ngalu is a Statewide culturally appropriate residential diversion program for adult Aboriginal men who are on Community Correction Orders as a result of being found guilty of a criminal offence. It is in Yarram and 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.
68 Uncle Lloyd talked to you about the program. Given the COVID-19 pandemic restrictions this may not be able to be undertaken in the foreseeable future, but this remains an option.
69 I have also had regard to your significant disadvantages experienced during a traumatic childhood and have applied the Bugmy principles.
70 Since being in jail, you have been drug-free and that is evidenced by two negative drug screens conducted whilst in custody.
71 I have now received the extended pre-sentence report that assesses you as being suitable for a Community Correction Order conditional upon a Justice Plan and confirmation of stable accommodation being confirmed.
72 A statement of Intellectual Disability under the Disability Act 2006 dated 18 June 2018 has been filed together with a Justice Plan that recommends that you engage with the Disability Justice Co-ordinator from South Division of the Department of Health and Human Services and that you agree with any forensic disability supports and treatments that are identified by the disability justice coordinator. These recommendations are made to provide you with services to assist you to reduce your likelihood of reoffending.
73 Upon your eventual release it is proposed that you will live with your partner, Tamika Rose, and your daughter in a unit in Newborough.
74 You have indicated your willingness to participate in a Community Correction Order subject to the conditions that have been explained to you in detail. The recommendations are that the Community Correction Order has special conditions, namely: supervision, judicial monitoring, treatment for drugs, offending behaviour programs and adherence to a Justice Plan. Overall you were assessed as being a medium risk of reoffending.
75 You have indicated your willingness to comply with all the terms of the order including the justice plan.
76 Ms Mildenhall submitted that in all the circumstances an appropriate disposition was a sentence of imprisonment in combination with a Community Correction Order together with a Justice Plan.
77 Mr Moore submitted that in all the circumstances, this is a serious example of armed robbery which is reflected in what is set out in the victim impact statement, and therefore general deterrence is an important factor.
78 Nonetheless he submitted that a sentence which results in a combined sentence of jail to be followed by a Community Correction Order would be appropriate in all the circumstances.
79 Overall, I have concluded that there are special reasons that do exist pursuant to s5(2H) of the Sentencing Act 1991 that permit the imposition of such a disposition.
80 I am satisfied that such an order will be capable of satisfying all the sentencing principles whilst offering you the best prospects of rehabilitation for the future.
81 It is important that a sentencing court look to the future as well as to the past, because there is a real benefit, not only to you individually, but also to the community at large if individuals are encouraged to promote their own rehabilitation such that the likelihood of reoffending in the future is correspondingly reduced.
82 I have regard to the guideline sentencing judgment in Boulton v R[4]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.
[4][2014] VSCA 342
83 The formal Court orders are in relation to the one charge of armed robbery, you will be convicted and sentenced to 301 days to be followed by a 2 year Community Correction Order with the special conditions of supervision, judicial monitoring, treatment and assessment for drugs, including testing, other offending behaviour programs as well as being placed on a justice plan that will run for 2 years, during the duration of the order, in the manner that has already been described to you.
84 You have indicated your willingness to consent to the Community Correction Order and you understand the terms and conditions of such order and the consequences of a breach of the conditions has been explained to you this morning.
85 I declare 300 days pre‑sentence detention.
86 I make the following declaration pursuant to s6AAA, but for your plea of guilty I would have imposed a term of imprisonment of 3 years to serve 2 years.
87 I make the Disposal Order sought.
88 Finally, I make the order for the taking of a forensic sample pursuant to s 464ZF of the Crimes Act 1958.I consider that such an order is in the public interest.
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