Director of Public Prosecutions v Myles Truman (Pseudonym)
[2021] VCC 2023
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01049
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MYLES TRUMAN (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2021 | |
DATE OF SENTENCE: | 24 November 2021 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Myles Truman (Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2023 | |
REASONS FOR SENTENCE
---
Catchwords: Criminal law – sentencing – attempted armed robbery – youthful offender – early plea of guilty – genuine participation in sentencing conversation – sentence yet to be imposed.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Cameron | Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms S Wendlandt Mr C Cameron | Martin Middleton Oates Lawyers Mildura |
HER HONOUR:
1Myles Truman[1], you have pleaded guilty to one charge of attempted armed robbery and a related summary charge 4, commit indictable offence of attempted robbery whilst on bail.
[1] A pseudonym.
2The charges are serious and that is reflected in the maximum penalties that are prescribed by Parliament of 20 years’ imprisonment in respect to attempted armed robbery, and three months’ imprisonment in respect to the related summary charge.
3You have admitted your criminal record. You have had numerous appearances in the Childrens Court and Local Courts in NSW as well as appearances in Victoria in the Mildura Childrens Court, the Mildura Magistrates Court, and the County Court.
4In the past you have had a variety of dispositions and have been imprisoned in both NSW and Victoria. Of some relevance is the fact that you have convictions for robbery (2019) and attempted armed robbery (2020).
5I shall proceed to sentence you based on the Prosecution Opening that was read at the plea hearing and is marked as Exhibit 1.
6You were 21 at the time of the offending and you are now aged 22.
7The offending occurred on 8 March 2021 at about 11:40am in Daisy Avenue[2].
[2] A pseudonym.
8Jarrod Camp[3], the victim, was working delivering catalogues with his son. He had parked his utility van in Daisy Avenue and his son was assisting him in a nearby street. Mr Camp noticed you on riding past on a bicycle along the footpath as he was unloading some catalogues onto a trolley. You turned your bike around and rode back towards him and asked him for the time. You then asked him whether he had any change. He responded that he did not. You then rode towards Mr Camp and said to him “give me your wallet”. Whilst making this demand, you held a screwdriver in your right hand. The screwdriver was not being pointed at Mr Camp but was being held to your chest so that he could see it.
[3] A pseudonym.
9Mr Camp started to walk towards a house at Daisy Avenue so that he could get some assistance as he was concerned that you may stab him with the screwdriver. You then rode away on your bicycle towards Fig Street[4].
[4] A pseudonym.
10Police located you nearby. When they conducted a body search, they located a brown bag containing a red handled screwdriver. You were cautioned and transported to Mildura Police Station where a formal record of interview was conducted during which you made no comment as was your right. You were charged and remanded in custody.
11A Victim Impact Statement has not been provided. However, common sense dictates that Mr Camp would have been fearful of your actions. He was entitled to undertake his activities delivering catalogues in the street without fear of being threatened.
12Your behaviour must be condemned. Deterrence, denunciation and just punishment are important sentencing considerations.
13Having regard to the objective features of the offending, I am satisfied that the offence falls at the lower end of seriousness for this type of serious offence of attempted armed robbery. The offence was of a short duration and there was no direct physical threat or harm to Mr Camp.
14What is troubling is that it is a repetition of similar behaviour for which you received a combined sentence of imprisonment and a Community Correction Order from this Court on 2 October 2020. That fact does not aggravate the circumstances of this case, but it does reflect very poorly on your rehabilitation prospects.
15However, this is the first occasion where your individual personal circumstances including the fact that you have a documented Intellectual Disability have been comprehensively outlined to the Court.
16I turn to your personal history and circumstances.
17You are a young Aboriginal man.
18You consented to your matter being heard in the Koori Court Division and the matter proceeded by way of a plea hearing on 4 October 2021. Uncle Mark Bland and Auntie Ada Peterson, Elders and Respected Persons, participated in a sentencing conversation with you.
19It has been recognised by the Court of Appeal in Victoria that “the sentencing conversation” is designed to further the reformation of an Aboriginal offender.[5]
[5]The Queen v Steelie Morgan [2010] VSCA 14 at [11].
20You explained to the Elders that following your release from prison on the 2020 combination order that you returned home to Mildura. Initially you settled in well. You were living with Tim[6], your older foster brother, and his partner, for a short while but, because of constant arguments between he and his partner, you found it difficult to remain living there and so you left their home and began once again to couch surf. Effectively you were homeless and drifting aimlessly.
[6] A pseudonym.
21You had not connected with any support services in Mildura following your release.
22You met up with a friend with whom you began to use methamphetamine and things quickly spiralled out of control. Your drug use increased and led to this further offending.
23You admitted to the Elders that you felt bad about what you had done and that you had let down those that were willing to assist you. You explained that at the time of the incident you were affected by drugs and that was the reason for the attempted armed robbery. Whilst providing some context to your offending, it does not in any way excuse your offending behaviour.
24You told the elders that you now want to change your behaviour so that you can break the cycle of re-offending and stop going back to jail.
25Both Elders encouraged you to take the time to reflect and begin to consider a different way of behaving. They encouraged you to overcome your difficulties in seeking help and not to be ashamed about asking for help.
26They both emphasised that you are a young person who needs to make better choices. They encouraged you to find out more about culture and to connect with your family so that you can break the cycle of re-offending.
27Uncle Mark urged you to think about the choices that you are making and that you ought to consider seeking help to address your drug addiction behaviour.
28Auntie Ada urged you to consider becoming better connected to your culture as a way of healing and urged you to find out more about your Aboriginal culture and background so that you are better connected to country and kin.
29She urged you to be open and talk to others and said that there was no shame in trying to find the right person to connect to who can assist you with your journey. She recommended you to some services that are available at the Mallee and District Aboriginal Services. In particular, she urged you to consider the Men’s Cultural Program run by Greg Sloane.
30You told the elders that your brother, Ken[7], is the manager of a lawn bowls club in Mildura. He is willing to support you on your release from prison and has offered accommodation as well he has indicated that he would be prepared to support you and endeavour to provide some employment for you in the future.
[7] A pseudonym.
31Ken has confirmed that he can provide accommodation to you upon your release. Thereafter it is intended that your NDIS support worker will assist you to obtain suitable permanent accommodation.
32You have strong connections to the Aboriginal community in Mildura where you have the continued support of your foster parents.
33I consider that your participation in the sentencing conversation was genuine. You were open and listened appropriately. You discussed with the Elders what was driving your offending behaviours. You showed good insight and an awareness about what you needed to do to stop offending.
34I have taken into account your genuine participation in mitigation of punishment.[8]
[8]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
35Your history and circumstances are set out in full in the report of Elizabeth Treston, consultant forensic psychologist, of 27 September 2020.
36You were born in Queensland and are the third of seven children. There are three younger sisters and you have three brothers only two of them survive. One of your younger brothers died from a heroin overdose recently.
37You have very little by way of formal education and you were expelled partway through Year 9 due to disruptive behaviours.
38In July 2013,[9] you were assessed and diagnosed with a mild intellectual disability and thereafter you became eligible for services of the Disability Services Division of the Department of Human Services.[10]
[9] Psychological report of Wendy Leane dated 26 July 2013
[10] Statement of Intellectual Disability dated 1 December 2014
39Your general cognitive ability as estimated by the WISC-IV Australian was assessed in the extremely low range. Your full-scale IQ of 57 fell within the extremely low range of intellectual ability placing you within the mild intellectual disability range.
40You are registered as a client with Forensic Disability Statewide Access Service (DFFH) and there is a Statement of Intellectual Disability under the Disability Act 2006.
41You have a complex family and trauma history. Growing up your father subjected you to extensive physical and sexual abuse. The Department of Child Safety in New South Wales intervened and when you were aged four, you together with your siblings were removed from his care. Your mother and your family then returned to live in Victoria where she had relatives and extensive family networks.
42When your mother died when you were aged 14. You found her body. You were extremely traumatised and you were placed in foster care.
43As I stated in the sentencing remarks dated 2 October 2020 you are a fragile and vulnerable young man. You are single and have a six-year-old daughter who is cared for by her mother in Sydney. You have been estranged from your former partner for many years so that you have had no contact with your daughter.
44You have been diagnosed with Post-Traumatic Stress Disorder (PTSD) related to your extremely difficult childhood experiences with a history of abuse and lack of stability and support in your formative years.
45Tragically, you were introduced to illicit drugs by your mother at a very tender age. You have stimulant use disorder and symptoms consistent with anxiety and depression.
46Ms Treston noted your strongly expressed desire to deal with your underlying drug addiction. She noted that you do not have the psychological tools to be able to do this.
47It is not evident that Ms Treston was made aware of your documented Intellectual Disability.
48I accept that to a large extent this repeat offending is reflective of the impact of your disability combined with drug use.
49You have a significant suicide attempt history in which you have attempted suicide on three occasions by way of hanging since 2017.
50In formulating the appropriate sentence, I have applied the Bugmy principles.[11]
[11]Bugmy v The Queen [2013] HCA 37, [40], [43]-[44].
51I accept that during your formative years you were exposed to profound deprivation, significant traumatic abuse, lack of stability and support and suffered significant social disadvantage. The effect of profound deprivation during childhood does not diminish over time and with repeat offending.
52I have given full weight to your background in formulating the appropriate sentence.
53I have reduced your moral culpability and the need to emphasise general and specific deterrence accordingly. There is, however, the need to provide for community protection in the sentence.
54You are still relatively young and I have applied the principles of The Queen v Mills.[12]
[12][1998] 4 VR 235.
55I have also had regard to your intellectual disability and have applied the principles set out in Muldrock v The Queen [13] and have also taken this into account in reducing your moral culpability and the need to emphasise deterrence.
[13] (2011) 244 CLR 120 (“Muldrock”).
56In Muldrock the High Court observed that questions often arise about the causal relationship between the offender’s mental state and the commission of the offence. The Court noted:
Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might , as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and the denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[14]
[14] Ibid 139 [54].
57I have taken into consideration your intellectual disability in formulating the appropriate sentence.
58I accept that you entered an early plea of guilty at the earliest opportunity. You were charged on 28 March 2021 and the matter proceeded by way of straight hand-up brief and a plea of guilty was entered at committal mention on 18 May 2021.
59The plea of guilty is of real utility. This has been identified by the Court of Appeal in Warboyes v The Queen[15]. A plea of guilty entered during the currency of the COVID-19 pandemic is considered worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.
[15] [2021] VSCA 169,[39].
60Through your plea you have spared the State the cost and expense of a trial and, importantly, spared the victim the trauma of having to come and relive his experiences. You have facilitated justice and your sentence will be discounted accordingly.
61I accept that the plea reflects the genuine acceptance of responsibility on your behalf and is indicative of genuine remorse.
62There has been a short delay between 20 July 2021 and 4 October 2021 in your matter proceeding that is not attributable to any action on your behalf and is due to the impacts of the COVID-19 pandemic. I have taken into account the delay
63I have taken into consideration the conditions of your detention and note that you have been held in custody throughout the pandemic and have personally experienced even more onerous restrictions than most because of your recent diagnosis of covid 19.
64On the 14 October 2021 you were diagnosed with covid 19 whilst you were in transit quarantine following your appearance in the Koori Court. You suffered shortness of breath, loss of taste, headaches, and body aches as well as high temperatures.
65You were kept in quarantine until the 30 October 2021 for a total of 26 days until the virus cleared from your body. The time spent in quarantine was onerous as you were isolated alone away from everyone.
66Fortunately, you do not suffer from any residual effects.
67As a young, vulnerable person within the jail system, your successful rehabilitation is in both your interest and that of the community’s.
68Some steps are now in place to provide you with strong community supports upon your release.
69You have been successful in having a NDIS plan approved[16]. Evidence was given by Angelina De Marco[17], social worker, Access Your Supports Pty Ltd, about what this means for you. Currently there is a basic plan in place that will be upgraded on your release. The plan is that you will be provided with support for housing, occupational therapy, and psychological services.
[16] NDIS correspondence dated 17 June 2021
[17] A pseudonym.
70Since April 2020 you have spoken with Ms De Marco whilst you have been in custody and have developed a good rapport with her. You have identified two primary goals of seeking a permanent home and employment. She is prepared to continue to support you to ensure that your needs are met through the implementation of the NDIS plan.
71Ms De Marco has liaised with your foster parents is aware of your intellectual disability and all your special needs. She stated that she would organise an urgent review of your plan to facilitate your supported release in the community. She will also further explore other wrap around services that may be available. You will be supported to assist you to complete any court orders.
72On your release back to the community the focus will be on providing you with strong supports so that you can obtain psychological counselling (including a Behaviour Support Program), speech and occupational therapy as well as support with finding a job and obtaining your driver’s licence.
73Both Elders emphasised the power of being connected to culture. I urge you to seek assistance from the Aboriginal Liaison Officer at the prison to develop the cultural journey as part of your future planning, so that you can focus on culture and community connection and identify appropriate cultural support programs and services that are available to you whilst in prison, and then following prison, so that you can transition and reintegrate back into community with cultural strong supports.
74Overall, I am optimistic about your prospects of rehabilitation provided you do live with your brother, Nelson and accept all the supports that are now in place.
75During the sentencing conversation I noted that there was a demonstrable shift in your attitude. You spoke about what drove your offending behaviours. You recognise the need for you to engage with appropriate supports in the community to deal with your complex trauma history, as well as your chronic drug addictions and to find a more positive direction for your life.
76There is cause for hope for the future provided you make good your expressed commitment to change.
77Finally, I have applied the totality principles. You have been remanded in custody since 8 March 2021. Your bail was revoked in respect to the Contravention of the Community Correction Order that this Court imposed on the 21 October 2020. You were re-sentenced in relation to the Contravention matters on 10 May 2021 and the sentence lapsed on 9 June 2021.
78It is agreed between the parties that you spent 325 days in custody attributable to that sentence and that there are 222 days up to today’s date to be declared as pre-sentence detention.
79In formulating the appropriate sentence, I must impose just punishment.
80On your behalf, Ms Wendlandt and Mr Lachlan Cameron sought a combination sentence.
81Ms Courtney Cameron, on behalf of the Prosecution, accepted the matters put in mitigation. The prosecution submitted that the protection of the community and rehabilitation are prominent sentencing considerations and agrees that general deterrence is somewhat moderated. Nonetheless specific deterrence is relevant having regard to your prior criminal history.
82Given the materials that were provided that confirmed your documented Intellectual Disability and the NDIS supports that are now in place further sentencing instructions were obtained that confirmed a combined sentence was within range.
83You have been assessed as suitable for a Community Correction Order. Your risk of re-offending is high.[18]
[18] Community Correction Order- brief pre-sentence assessment outcome report dated 30 November 2021.
84Taking into account the objective gravity of the offending, your personal history and circumstances as well as all of the mitigatory factors that I have highlighted and the sentencing purposes, I consider that a combination sentence of 9 months imprisonment to be followed by a 12 month Community Correction Order with conditions of supervision, assessment and treatment for drug abuse or dependency (including testing), mental health assessment and treatment and offender behaviour programs is the appropriate disposition.
85Mr Lachlan Cameron, who appeared on your behalf at the further plea and sentence comprehensively explained to you the nature of the Community Correction Order that the Court foreshadowed would be imposed. You acknowledged to him that you understood the terms of the order and consented to such an order being made. You have also had explained to you what happens if you do not comply with the terms of the order.
86The formal court orders are as follows:
87On Charge 1, attempted armed robbery you will be convicted and sentenced to 9 months imprisonment to be followed by a 12-month Community Correction Order in the terms that I have already described.
88On summary charge 4, commit indictable offence whilst on bail, you will be convicted and sentenced to 1 month imprisonment. This sentence is concurrent with the sentence imposed on charge 1.
89I make the following section 6AAA declaration but for your plea of guilty I would have imposed a term of 2 years 6 months to serve 18 months imprisonment.
90I make the disposal order sought.
91Finally, I declare that there are 222 days pre-sentence detention and direct that the declaration be entered into the records of the court.
6
0