Director of Public Prosecutions v Moore
[2015] VCC 1778
•7 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
Case No. CR-15-01397
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN WILLIM MOORE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 30 November 2015 | |
DATE OF SENTENCE: | 7 December 2015 | |
CASE MAY BE CITED AS: | DPP v Moore | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1778 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – attempted armed robbery – armed robbery –Community Corrections Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | John Cain Solicitor for Office Public Prosecutions |
| For the Accused | Mr S. Payne | Victoria Legal Aid |
HER HONOUR:
1 Stephen Moore, you have pleaded guilty before me to one charge of attempted armed robbery, and one charge of armed robbery.
2 Those offences are serious and that is reflected in the maximum penalty that is prescribed by law for each of the offences, and they are as follows: Attempted robbery, 10 years imprisonment, and armed robbery, 25 years imprisonment.
3 The offending, the subject of the two charges on the Indictment, occurred on Tuesday 11 August 2015. The attempted robbery was committed at the Foundry Hotel, Bendigo. The armed robbery was committed at the Bendigo RSL. Both are established hotels/commercial type gaming venues.
4 You are 18 and you were 18 at the time of the offending. You are considered to be a young offender, at law, and therefore your rehabilitation is the principle sentencing consideration.
5 Each of the offences were captured on the CCTV footage that has been viewed by me and it clearly shows you undertaking the offending.
6 On each occasion you were in company with your cousin, Malaki Kirby, who is a gentleman who is aged 38. He has a long history of criminal offending, including an armed robbery charge. He remained outside of the venues in an awaiting car.
7 Charge 1 concerns you entering the Foundry Hotel at around 7.16 pm, approaching a young female cashier, asking her to give you some money. She did not agree to your demands. You attempted to jump into the cashier area, but were not successful and you left the premises.
8 The CCTV footage showed your attempt to get the money and it showed you attempting to climb into the cashier area. You are not disguised. You were wearing a distinctive red and black and white Honda jacket. You were readily identifiable.
9 You left with the co-accused and drove to the Bendigo RSL. You then entered that venue at about 7.26 pm. You went up to the cashier, another young female at the counter. You asked her for a couple of hundred. You pushed the end of a serrated knife out into your hand and flashed the end of the knife. You told her to give you the money and you said, "Don’t make me stab you, love." She gave you two $50 notes. You then asked for some more and she took out about $500 from the till. You grabbed it and fled to the awaiting car and left the area.
10 You were arrested on 12 August 2015 and interviewed by police. You did not admit to the offending, but you did take the police to the area where you had hidden the knife and the jacket that you were wearing on both occasions. You were charged and bailed.
11 You were then arrested again on 28 September 2015 for unrelated summary charges and at that time you were remanded in custody and have remained in custody since that time, some 72 days in total.
12 You have been held at the Melbourne Remand Centre, in somewhat difficult circumstances, because your incarceration coincided with the lockdown conditions associated with the riots that took place at MRC, so it has been very difficult for you and I accept that. For a young man in your condition who had never been in gaol before, it would be a tough experience.
13 You co-accused, Mr Kirby, has been charged and is to appear in the Bendigo Magistrates' Court on 3 February 2016.
14 You admitted a prior criminal history. I noted that there were two appearances in the Bendigo Children's Court, one on 15 July 2014 and one on 8 September 2014, for some dishonesty offences and an unlicensed driving charge. In the past you have been dealt with by way of probation and undertakings to the court.
15 This matter resolved at the first committal mention. The Crown concedes that your plea was entered at the earliest opportunity.
16 A compensation order for the Bendigo RSL in the sum of $600 is sought and that order is not opposed.
17 In sentencing you, Mr Moore, I have had regard to the gravity of the offending and this offending was serious. I accept that it involved a course of conduct over one night, but there were a number of aggravating features. You went in armed on the second occasion when you robbed the RSL and you showed the knife to the person who was on the cash desk and that would have been terrifying for her. Your offending did impact on those two women who were present at the gaming venues, at the cashier offices. Victim impact statements were sought but declined. I have had regard to the contents of their statements, in the depositional material.
18 During the course of the plea hearing, Mr Payne, on your behalf, told me that the motivation for your offending was money. You were drinking heavily and using ice at the time. You needed money to fund your habit.
19 Whilst providing an explanation for the offending, it does not excuse in any way your offending. But in your favour I accept that you made no attempt to disguise yourself and you were not overly threatening to the cashiers.
20 I consider that these are less serious examples of the charges of attempted robbery and armed robbery and were relatively unsophisticated. You were readily identified on the CCTV footage. Nonetheless there is a real need in sentencing you to emphasise general and specific deterrence.
21 I note your personal background. You are 18, as I said earlier. It is your first time in a custodial setting. It has been a very difficult and salutary experience for you, but you have used the time wisely to reflect on your future.
22 It is intended that upon your release you will go and live with your mother, who has been a long-term resident of Bendigo. You are one of four children. Your two older siblings have been in court for the plea hearing and are supportive of you. They are Natasha and Aiden.
23 Your parents separated when you were very young and your father is now deceased. You were raised by your mother in Bendigo. You are of Aboriginal background and you have connections to the Wamba Wamba people in Swan Hill. Your upbringing, I am told, was unremarkable. You did not have any problems identified, which sadly are usually associated with people who commit these sorts of offences, such as alcohol abuse, drugs, physical and mental and psychological or sexual abuse.
24 You had a little bit of problem at school. You left halfway through Year 8. You were at the Catholic College, Bendigo. You were only aged 15 when you completed school. You have got no real work history. I note that your family is a respected one and it is said that no other of your immediate family members are currently in gaol.
25
I have had regard to the mitigating factors that were put by Mr Payne and
I accept those.
26 I accept your offending does represent an escalation in your offending behaviour, but I accept your decision to undertake these two crimes, that is the attempted robbery and the armed robbery, were no doubt influenced by your lack of sobriety and the influence of an older cousin. I accept that you made a very irrational but thought-out decision to participate in these crimes.
27 Following your remand, you have made the most of the opportunities provided to you in the restrictive custodial setting that you have found yourself. You have undertaken an Occupational Health and Safety course and you have participated in the VCAL certificate two days per week and you are now saying that you are interested in pursuing education and you have an interest in horticulture and motor mechanics.
28 I accept your plea of guilty was entered at the earliest stage and it has significant utilitarian value. You spared the State the expense and inconvenience of a trial and importantly the young cashiers, the witnesses, the trauma of having to come to court to give evidence at your trial. By your plea you have facilitated justice and your sentence will be discounted accordingly. I accept that your plea does represent genuine remorse.
29 Whilst in prison, you have realised the wrong choices that you made and you state you are now determined to change your behaviour, so that you may never fall into this sort of trouble in the future. You are committed to continuing to take steps to make a better person of yourself.
30 I refer to our earlier discussion that took place at the plea hearing, whereby you indicated to me that you were willing to consent to a community corrections order, with all the attendant conditions and restrictions.
31 I accept that you have, following your remand, taken real stock and you appreciate now what you have done and you have greatly reflected on your poor decisions and wrongful behaviour.
32 By your own actions and through your own conduct in jail, you have demonstrated that you do have a commitment to your eventual rehabilitation. The order that I propose to impose will assist you in that regard.
33 I accept your rehabilitation prospects are excellent, provided you make good your own commitment to the court that you will not indulge in drugs or binge drink and that you will adhere to the Community Corrections Order conditions.
34 On your behalf, Mr Payne sought a Community Corrections Order, having regard to the particular combination of features in your case, namely the fact you are a youthful offender; you entered an early plea of guilty at the earliest opportunity; your remorse; your co-operation with the police; your expressed and genuine remorse; and your excellent prospects of rehabilitation. He relied on the guideline sentencing judgment of Boulton and requested that the court consider releasing you on a Community Corrections Order, with strict conditions.
35 On behalf of the Crown, Mr Devlin submitted a combination of gaol and a Community Corrections Order would be appropriate. The amount of gaol was a matter for the court.
36 As was stated by the Court of Appeal in this State in the guideline judgment in Boulton, a Community Corrections Order is intrinsically punitive and is capable, depending on the length of order and the nature and extent of conditions imposed, of being highly punitive. It follows therefore, as a matter of principle, that a Community Corrections Order can operate to deter others.[1]
[1]Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342 at para [124].
37 I have already gone through with you how a Community Corrections Order works, the mandatory conditions attached to every Community Corrections Order. I will just repeat the special conditions for you case, which will be, it will go for two years. You will have to do 100 hours unpaid community work. You will have to be assessed and treated, including testing for alcohol and drug abuse or dependency. You will have to participate in programs directed at your offending. It has been recommended in the pre-sentence report that you would benefit from educational programs provided within the community, such as the YMCA Bridge Best Program. I have also asked them to consider any other programs suitable for young indigenous offenders.
38 The order will be for two years duration, so it starts today, 7 December 2015 and ends on 6 December 2017.
39 There is one other condition in addition to everything I went through with you last week, and that is, that I will have you attend here at the County Court, Bendigo, on 16 May 2016 at 9.30 am, because I will make provision for Judicial Monitoring, and provided you are travelling well, I will not constantly review you personally, but I will be interested to hear how you are going on 16 May next year. All right? So hopefully it will be a good report.
40 In those circumstances, I consider that a community corrections order, as crafted, can serve the purpose of general and specific deterrence and it will provide you with real punishment and should deter you from further offending.
41
In sentencing you in the manner that I have proposed, I have had regard to the sentencing principles set out on R v Mills.[2] I think it is important that you be given an opportunity of undertaking your sentence in the community, because I want to avoid you being exposed to further influences in gaol and
I consider that the best opportunity for you, to encourage you and support you is within the community.
[2] [1998] 4 VR 235, 241 (Mills).
42 In sentencing you, I have had regard to the need to impose just punishment and on behalf of the community, I must formally tell you that your behaviour was just not acceptable and in the event that you further offend, well further penalties will apply.
43 Ultimately I have, as I have said already, been persuaded, having regard to the particular combination of features in your case, Mr Moore, that a Community Corrections Order can adequately achieve all relevant sentencing purposes.
44 I have been impressed, despite your age, you are very young, that you have demonstrated, through your experiences in prison, that you are able to reflect on your behaviour and you are receptive and amenable to change. You have shown to me that you have real insight, therefore I will sentence you on the two charges as follows:
45 Could you please stand.
46 In respect to the one charge of attempted robbery and the one charge of armed robbery, you will be convicted and placed on a Community Corrections Order for two years, commencing today and ending on 6 December 2017.
47 In addition to all the other mandatory terms, I will repeat, you have to do the following:
· 100 hours of unpaid community work over two years.
· Undergo assessment and treatment, (including testing) for drug and alcohol abuse.
· Participate in any programs directed to offending behaviours.
· Attend for Judicial Review on 16 May 2016 at 9.30 am at the Bendigo County Court.
48 I make the Compensation Order sought. You must pay RSL Bendigo $600. That order is made pursuant to s.86 of the Sentencing Act 1991.
49 I make the Disposal Order sought with respect to the knife.
50 Finally I make the s.6AAA declaration. But for your plea of guilty, I would have imposed a sentence of three years' imprisonment, to serve 12 months'.
51 I believe that covers everything.
52 COUNSEL: As Your Honour pleases.
53 HER HONOUR: Yes, Mr Moore can be brought up to the Bar table and my associate will get him to sign the order.
54 The only other thing is, if you do do some educational programs and some programs for drug and alcohol abuse, the Community Corrections Order can credit some of the hours for your community work.
55 OFFENDER: Yeah.
56 HER HONOUR: So as long as you co-operate with them, you should get through this.
57 OFFENDER: Yeah.
58 HER HONOUR: All right.
59 OFFENDER: Thanks, Miss.
60 HER HONOUR: That is all right. I am not a Miss, but - - -
61 OFFENDER: Oh, Mrs.
62 HER HONOUR: A long time ago. All right.
63 The only other thing is, I have been told the Mallee District Aboriginal Services have somebody there called Bobby Wise, who does assist young men like you who want to try and find a little bit more about their backgrounds.
64 OFFENDER: Yes.
65 HER HONOUR: So I will give those details to your counsel. He has got some other material too that he can give you. Here we are. So I have signed that. I will just get you to sign that with your counsel. And you understand all the conditions?
66 OFFENDER: Yeah.
67 HER HONOUR: All right, so now you have done that, you will be free to be released. I know it is going to be difficult over the next little while, because you have got Christmas and New Year.
68 OFFENDER: Yeah.
69 HER HONOUR: There will be lots of temptations, but you have just got to stay strong.
70 OFFENDER: Yeah.
71 HER HONOUR: All right?
72 OFFENDER: Yeah.
73 HER HONOUR: All right. Just go back with the policeman. I suppose they will release you.
74 OFFENDER: Okay.
75 HER HONOUR: All right, thank you. All right, we can adjourn.
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