Director of Public Prosecutions v Myers (a pseudonym)
[2018] VCC 199
•5 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONNOR MYERS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21 February 2018 | |
DATE OF SENTENCE: | 5 March 2018 | |
CASE MAY BE CITED AS: | DPP v Myers (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 199 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing.
Catchwords: Armed robbery – young offender – Youth Justice Centre Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Maguire | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr M Brugman | Michael Brugman Criminal Lawyers |
HER HONOUR:
1 Connor Myers,[1] you have pleaded guilty before me to three charges of armed robbery.
[1]Connor Myers is a pseudonym.
2 Your offending is objectively serious and that is reflected in the maximum penalty that is prescribed by law, and that is 25 years’ imprisonment.
3 You also consented to a summary charge being transferred pursuant to s.145 of the Criminal Procedure Act 2009 and you have pleaded guilty to one charge of possession of cartridge ammunition, whilst not being the holder of a licence under the Firearms Act 1996, or a permit under s.58A. You entered a plea of guilty in respect to that charge. The maximum penalty for that summary charge is 40 penalty units.
4 You have admitted your prior criminal history. There are four previous appearances in court at the Geelong Children’s Court. The nature of the charges for which you have been dealt with in the past have been predominantly street-type offences for which you have received without conviction dispositions.
5 This present set of offences is a real escalation in terms of your criminal behaviour given the serious nature of the charges.
6 I shall proceed to sentence you on the basis of the summary of prosecution opening that was read at the plea hearing and is marked as an exhibit.
7 You were aged 19 at the time of the commission of the offences and you are now twenty. The motivation for the offending was that you needed money to repay a drug debt.
8 The first two charges of armed robbery concern an occasion on 13 May 2017. At approximately 11.45 pm you approached three males, David Leach[2] (aged 18), Edward Ritchie[3] (aged 17) and Ryan Sharp[4] (aged 16) when they were in the vicinity of the children’s swimming pool area at Eastern Beach. Sharp had lost a bet earlier in the evening and he was there to swim in the pool. This activity was being filmed by Ritchie with his Apple iPhone 6S mobile telephone.
[2]David Leach is a pseudonym.
[3]Edward Ritchie is a pseudonym.
[4]Ryan Sharp is a pseudonym.
9 Whilst Sharp was in the pool, you approached the other two. As Sharp was getting out of the pool, you asked them for a lighter for your cigarette. You were told that none of the boys had a lighter as they did not smoke. You repeated your request five or 10 times.
10 You told Leach to come closer and as he did you pulled out an imitation firearm with your left hand and pointed it at him.
11 Leach was about a metre away and described the firearm as “small and black about ten to 20 centimetres in length.” You were holding it at hip height in your left hand.
12 Ritchie described what he saw as being what he believed to be a gun. It was shiny, black and had a brown grip, like a revolver. You had it tucked in tight on your left hip.
13 Sharp said he could see the barrel and it looked like a semiautomatic type hand gun because it had a cut out part where the empty cartridge would come out.
14 You told Leach to give you his wallet and demanded that the group provide their phones and wallets to you. Leach said he did not have anything but you said, “Don’t lie to me” and started swearing so that he eventually handed over his wallet.
15 Ritchie initially denied having a phone but you pointed the gun at him and told him you had seen it before when he was recording. You said to him “Give it to me or I'll blast you.” Ritchie then handed over his phone. You then asked him for his password and told him if it was not the right password that you would come back down and "blast him".
16 You then told the three young men to stay there until they could not see you, or you would come back down and shoot them.
17 Triple zero was called and the police were advised of your actions.
18 The circumstances of the third armed robbery. On the following day, Sunday 14 May 2017 at about 11.25 am, Caitlin Moffitt[5] was waiting at a bus stop on High Street, Belmont. She had been shopping previously for Mother’s Day and had purchased some chocolates and a pair of pyjamas. She was alone at the bus stop when you approached her and asked her if she had a cigarette. She told you that she did not smoke and you continued to walk around her. You then said, “I’m taking your bags, don’t move.” You were holding a knife that was approximately 50 to 60 millimetres in length and about 10 millimetres in width. You held it in your right hand and pointed it at her face, approximately 30 centimetres away. You were shaking and she thought you were going to stab her.
[5]Caitlin Moffit is a pseudonym.
19 You took her bag containing her phone, wallet and other personal items, including the presents that she just purchased.
20 When she arrived home she reported the matter to a roommate who then called police.
21 Police attended and ultimately they were able to locate you through using the Find My iPhone application. You were arrested on Sunday 14 May 2017 at 12.49 pm and at the time of the arrest, you had a small red kitchen knife tucked into your underwear and you were carrying a bank card in the name of Leach and a bank card in the name of Ritchie.
22 You were found to also be in possession of a black Caribee bum bag in which the iPhone belonging to Ms Moffitt was located as well as Mr Ritchie's iPhone and a wallet belonging to Mr Leach and personal cards belonging to Moffitt and Myers. In addition there were two rounds of ammunition that were wrapped in black tape which relates to the summary offence of possess cartridge ammunition.
23 You were taken to the Geelong Police Station and formally interviewed. You denied pulling a knife out in relation to Moffitt but said you did tell her that you had one. You told police the reason for the commission of these offences was that you needed money for drugs.
24 In relation to the Eastern Beach incident, you said that you walked up to one of the youths, grabbed one of them over the barrier by the scruff and told him to give you his wallet and told one other to give you his phone. You admitted that you did tell them not to move until you had gone or you would bash them. You told police that you were not in possession of a gun.
25 Victim Impact Statements have been provided by David Leach, Edward Ritchie and Ryan Sharp as well as Caitlin Moffitt. Each of their statements detail the consequences of your actions and how they have suffered.
26 Leach says he was very traumatised and emotionally affected. He ruminates about what happened and was very frightened. Socially he is much more careful and does not feel safe out in public. He has modified his behaviour considerably and reduced his social activities.
27 Ritchie suffers from anxiety, nightmares and difficulties with fear and anger. He ruminates about what has happened. He has not enjoyed life since the incident and he too has also modified his social activities.
28 Sharp says he is very angry, scared and shaken by these events and he suffered as a consequence, some depression and difficulties with concentration and that has impacted greatly upon his schoolwork.
29 Caitlin Moffitt says she suffers the symptoms of Post-Traumatic Stress Disorder including sleeplessness, nightmares, anxiety and depression. She has real trust issues and finds it very difficult being out in public. She is very fearful of taking public transport alone and it has impacted upon her greatly in terms of her feelings of insecurity knowing that her wallet was taken with all her personal identification and that has not been recovered. She is worried about other people having access to that information and using it.
30 I noted in the report from the case manager at Barwon Southwest, Danielle Hall, when you discussed with her the offending, that you had reflected on the impact of your offending and in particular, its impact upon the victims. You said to her, "No-one deserves to be that scared and they've gone through a lot. The girl does not feel safe at home. I stole her keys, I feel awful." You said that you have some understanding of what they have been through because of an incident that occurred to you that I will refer to shortly.
31 Mr Myers, your actions really do deserve condemnation. There is a real need to emphasise deterrence for you personally and for others. These are serious examples of this sort of offence. You preyed on innocent victims who were merely going about their business in public places and have caused them to have real concerns about their own safety going forward.
32 I have had regard to the fact that the offending occurred effectively in the course of a 12 hour period. You were aged 19 at the time of the offending and therefore you are considered to be a youthful offender and your ultimate rehabilitation is a significant aspect of your sentence.
33 On your behalf, Mr Brugman put a number of mitigating factors which are accepted. You pleaded guilty at the earliest opportunity during committal proceedings. The plea has real utility. You have spared all the victims the trauma of coming to Court to give evidence and that is of real significance given their own youthful age and the effects of the offending that I have already articulated. By your plea, you have facilitated justice and your sentence will be discounted accordingly.
34 You have been held in adult custody since your remand following the arrest for these offences. This is your first experience of adult custody or detention of any kind. You have been held at various locations including the Metropolitan Remand Centre, Fulham Correctional Centre and Marngoneet Correctional Centre and more recently back at Metropolitan Remand Centre. Your experience in adult custody has been a salutatory one. You have experienced difficulties coping and have been the subject of intimidation and threats of violence from older inmates. Prison has been difficult for you and recently because of an incident you have lost your visiting rights, which has caused you great distress.
35 I have had regard to the contents of the report obtained from Ms Carla Lechner, clinical psychologist, whose report dated 14 February 2018 sets our your full history and background. Her diagnosis is that you have the symptoms of stimulant and cannabis use disorder (DSM-5) in early remission and also symptoms of Post-Traumatic Stress Disorder and Major Depressive Disorder.
36 She notes a long history of depression and anxiety dating back to primary school days when you were the victim of chronic bullying. That continued in high school such that you left school at the beginning of Year 8. Your symptoms have been aggravated by recent experiences of loss of several family members or people close to you who have died due to suicide, drug overdose, car accident or illness and also a recent incident where you were held hostage.
37 Over the years you have used drugs and alcohol as a means of managing your emotional and physical distress.
38 When speaking with Ms Lechner, you told her at the time of the offending, you were trying to gain money for drugs and that you were now disgusted with yourself and you were able to express appropriate empathy for the victims.
39 Ms Lechner states, on account of your social and emotional immaturity, that you are finding it very hard to cope with rigours of adult custody.
40 You are the third of five children born to your parents. Your parents separated many years ago and effectively you had no contact with your father growing up. He was an alcoholic and an abusive and violent man. You experienced him being violent towards your mother in the past. There are two older half-siblings on your mother’s side.
41 You still enjoy a good relationship with your mother. She is very supportive and hopes for your drug rehabilitation. She is unable to visit you in prison due to her own medical concerns. You are in a relationship with an older person who has a nine year old son from a previous relationship.
42 You grew up in the northern suburbs of Geelong and as I indicated before, left high school at the beginning of Year 8. Whilst at school, you required an integration aid and there were very real issues with you because of a physical condition that you suffered in your early days which meant that you were bullied as a child.
43 Since leaving the school you have had some casual cash in hand work at a local farm but you have been unemployed for several years and your substance abuse has increased with frequency over the years.
44 In early 2017 you were held hostage by a group of men for two to three days. You had on stolen a car that had been in the possession of one of your assailants and that experience added to your current symptoms of Post-Traumatic Stress Disorder.
45 Ms Lechner assessed you as being of low-average intelligence although she did not formally assess you. She considers that you are a person easily overwhelmed by emotional and social factors, together with drug use, which undermines your judgment and decision making skills.
46 You have a long history of drug and alcohol use commencing with cannabis at age 12 to 13 and then in your mid teen years you commenced using the drug methylamphetamine.
47 Whilst in custody you have been drug free and there are screens provided to the court that are clear. You have also been commenced on some antidepressant medication.
48 For the future Ms Lechner makes recommendations in respect to treatment to address your drug addiction problems and also your mental health problems. She states that you require intensive specific post-traumatic counselling. I agree with her recommendations and her report will be made available to the authorities.
49 I have had regard to the reference from Alice Paine[6] that was tendered at the plea hearing. She supported what was told to the court, that your childhood was a difficult one, particularly having regard to your father's abuse towards your mother.
[6]Alice Paine is a pseudonym.
50 She considered the offending to be out of character for you and not consistent with the type of person that she has known for some 15 years. She expressed a willingness to support you in the future.
51 In formulating the appropriate sentence, it was accepted that the offending, involving as it did, three armed robberies, was serious and that as a consequence a custodial sentence must be served.
52 Mr Brugman submitted, and I accept, having regard to the recommendations made in the pre-sentence report, that the most appropriate sentence in all the circumstances is a period of detention to be served in a Youth Justice Centre, that is, because of the fact that you were a youthful offender at the time.
53 Overall, given your current expressed attitude towards the offending and your actions whilst in custody, remaining drug free, I consider that there are reasonable prospects for your rehabilitation.
54 Given what has happened since you have been in adult custody, I do consider that you are particularly impressionable, immature and likely to be subject to undesirable influences in an adult setting and therefore you will be sentenced to confinement in a Youth Justice Centre. Such a sentence will satisfy the principles of both general and specific deterrence, denunciation and just punishment.
55 Mr Maguire, on behalf of the Crown, confirmed that such a disposition would be open to the Court in all the circumstances.
56 Your ultimate rehabilitation is something that will best serve you individually but it also provides the best support for the community in the future.
57 The pre-sentence report provided by Danielle Hall has been very informative. Your suitability for a Youth Justice Centre is endorsed, notwithstanding there were some concerns expressed initially.
58 Overall the factors that weigh heavily and do support your suitability for a Youth Justice Centre order are the fact that you now take full responsibility for your role in this offending, that you understand its effect and you have insight into the impact of your actions on each of the individual victims involved.
59 In addition this offending does not appear to be in the context of a pattern of planned and chronic offending. You have no prior convictions, court orders or detention sentences in the past.
60 There have been instances where you have been subjected to intimidation and threats of violence whilst in prison from older prisoners and your overall situation in the adult custodial setting is one that does cause me some concern.
61 In the past as a child whilst at primary school you endured a history of victimisation, being bullied by your peers throughout childhood resulting in social isolation. That makes you a particularly vulnerable person in an adult setting and that should be avoided if possible. You do display currently symptoms of Post-Traumatic Stress Disorder, Major Depressive Disorder and substance abuse issues.
62 All in all, given your prospects for rehabilitation, it is a situation where I consider that a sentence to be served ought to be served in a Youth Justice Centre and an order will be made accordingly.
Formal Court Orders:-
63 In respect to the three charges of armed robbery you will be convicted and an order will be made that you will be detained at a Youth Justice Facility for two and a half years. In respect to the summary charge of possession of cartridge ammunition, you will be convicted and discharged.
64 I make the following declaration of pre-sentence detention. I declare that you have served 295 days pre-sentence detention and direct that that be entered into the records of the court.
65 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty you would have been convicted and ordered to serve the maximum sentence that can be imposed, that is a Youth Justice Centre order of three years.
66 I make the disposal orders sought in relation to the ammunition, knife and clothing seized.
67 Finally, I make the order pursuant to s464ZF for the taking of a forensic sample. I have made that order having regard to the seriousness of the offending, I consider it is in the public interest that such an order be made and I note that this order was by consent.
68 All I have to do now, Mr Myers, is to tell you that at the time the request is made for the taking of a forensic sample, if you do not consent to that by the taking of a mouth scraping under supervision by a member of the Police force who is authorised, then the sample can be taken by way of a blood sample and police may use reasonable force to enable that procedure to be conducted.
69 I think that covers everything gentlemen?
70 MR MAGUIRE: Your Honour pleases.
71 MR BRUGMAN: Your Honour pleases
72 HER HONOUR: Have we got the orders? The orders will be printed out now and I will sign them and provide them to you, Mr Maguire.
73 MR MAGUIRE: Thank you, Your Honour.
74 HER HONOUR: We do not have the s.464ZF order on the system so I just ask that your instructor provide that to me.
75 MR MAGUIRE: Yes, Your Honour.
76 HER HONOUR: All right, we can adjourn.
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