Director of Public Prosecutions v Naden
[2019] VCC 958
•26 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00339
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REGGIE NADEN |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2019 |
| DATE OF SENTENCE: | 26 June 2019 |
| CASE MAY BE CITED AS: | DPP v Naden |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 958 |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – armed robbery and related summary charges – combination sentence imposed.
Legislation Cited: Sentencing Act 1991
Cases Cited: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 Director of Public Prosecutions | Mr D. O’Doherty (Plea) Mr. P. Harrison (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr. D. De Witt | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Reggie Naden, you have pleaded guilty before me to one charge of armed robbery and two related summary charges, being summary Charge 7, commit an indictable offence whilst on bail, and summary Charge 10, unlawful assault of Noa Pomee and Eganda Jack.
2The offences are serious and that is reflected in the maximum penalties prescribed by law and that is 25 years' imprisonment for armed robbery, three months' imprisonment in respect to commit an indictable offence whilst on bail and two years' imprisonment with respect to unlawful assault.
3In addition, you admitted your prior criminal history. Your history spans a period from 14 July 2016 to 4 December 2017. There are three appearances at the Children's Court and one appearance at the Melbourne Magistrates' Court.
4Of relevance, you do have a prior appearance for robbery, burglary charges and contravene a conduct condition of bail in 2016, as well as some dishonesty offending in the past.
5You have been dealt with fairly leniently over the years by way of adjourned undertakings without convictions in the Children's Court, and in respect to the Magistrates' Court, you were given an adjourned undertaking.
6In addition, you have been recently sentenced by Her Honour Magistrate Popovic on 17 June 2019 at the Melbourne Magistrates' Court in respect to a large consolidation involving 20 informants, for offending spanning the period from 8 January 2016 to 26 May 2019.
7You received a total effective sentence of 30 days imprisonment, which was pre-sentence detention, pre-dating the commission of the offence for which I am dealing with you, to be followed by a 12 month Community Correction Order to commence on today's date, 26 June 2019, with conditions relating to mental health, alcohol and drug treatment, rehabilitation, 200 hours community work with a recommendation that you serve your CCO at Wulgunggo Ngalu, together with a 12 month licence disqualification, a $600 restitution order and a s.464ZF order. In view of that, I do not need to make one, do I? There is already one made in the Magistrates' Court?
8MR HARRISON: No, there should be Your Honour. I would just be somewhat concerned whether or not that was an in-custody or not, and how that would proceed. Obviously it would not be, because I am not quite sure how it was done. A second order may not be of any detriment, just for clarity. Obviously only one would be taken, it would still be the 30 day waiting period…
9HER HONOUR: I don't know. You were there. Was it an
in-custody or out-of-custody one?10MR de WITT: It wasn't specified, but the outcome that was contemplated is that he would be released on a Community Correction Order, given they can only be, say the 464ZFs can only be taken 28 days from the original sentence. That would make it a community.
11HER HONOUR: You don't have the order?
12MR de WITT: I do not, Your Honour, and it was not provided to me, so in those circumstances, I take no issue with the submission from my friend.
13HER HONOUR: All right, I will make one just in case. Thank you. There were several summary allegations that were proven and dismissed as well, as I understand.
14MR de WITT: Yes.
15HER HONOUR: Yes, all right.
16Mr Naden, you are a 20 year old Aboriginal man. You have aboriginal heritage with connections to Barkinji and Wurundjeri people. As a result of being removed from your mother's care at an early age, you have had little contact with your aboriginal cultural heritage. You have expressed a real desire to reconnect with your Aboriginal heritage.
17In this matter you proceeded in the Koori Court division. The matter proceeded by way of a sentencing conversation in the Mildura County Court on 27 May 2019. Present were Auntie Raylene Drummond and Uncle Peter Peterson with whom you discussed the offending, the reasons for your offending and your future goals. You genuinely participated and that has been taken into account in your favour[1].
[1] 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.
18I shall now proceed to sentence you on the basis of the summary of prosecution opening that was read at the conversation.
19At the time of the offending you were living with some family members in Mildura. On 18 October 2018, you were bailed from the Mildura Magistrates' Court for unrelated offending.
20During the morning of 14 November 2018, you ingested six points of ice and a shot of heroin. As you well, you consumed some Valium and Seroquel and you consumed a litre of vodka.
21At around 3.40 pm that day, you went to the Subway store located in Deakin Avenue, Mildura. At the time two employees, both a male and a female were present. There were no customers. They were standing behind the counter and saw you approaching the counter. You had a hooded jacket covering your face, and you were holding a large kitchen knife in your hands. The two workers, Najout Singh and Catriona Warden fled from the store.
22You then walked around the counter and used force to rip the cashbox till from the cash register and that constitutes Charge 1 the armed robbery, and Summary Charge 7, commit indictable offence whilst on bail charge.
23The armed robbery constitutes a breach of your conditions of bail and that is the basis for the commit an offence whilst on bail.
24At the time of the offending, five teenagers were nearby and they heard the Subway staff members yelling the store had been robbed. They ran to the north side of the store at which time you were seen exiting the store.
25As you were crossing the intersection of a nearby road, two of the teenagers, Noa Pomee and Eganda Jack yelled at you to bring back the money. One of them was holding a chair for protection at the time. You turned around and looked at the teenagers and yelled at them, and I will not repeat the words set out in the summary, and that constitutes Summary Charge 10, assault with a weapon.
26You then fled the scene and you were confronted by the two young men, Pommee and Jack in the nearby alley way. They were throwing rocks at you and telling you to drop the cash box. They continued to pursue you, but ultimately you were able to get away.
27You then went to a unit in Mildura, which is a residential address of some of your cousins, and attempted unsuccessfully to lever open the till box with a screw driver and a pair of scissors.
28At about 4.10 pm, police attended and placed you under arrest and took you to Mildura Police Station, where they conducted an interview in the presence of an independent third person. You were cooperative and made full admissions to the armed robbery.
29The police located the damaged black cash till box at the time of your arrest. It was estimated that the cash till contained approximately $500 to $600 in cash, of which only a small portion was recovered.
30You pleaded guilty to the charges at committal mention that was held on 19 February 2019. It is accepted that the plea was entered at the earliest stage in the proceeding. You have been held in custody on remand in an adult prison since your arrest. This is your first time in adult custody.
31Mr de Witt, on your behalf, conceded that you have pleaded guilty to serious offending, and accepted that the experience clearly would have been terrifying for the victims. No victim impact statements were filed by the employees or the two young males who were the subject of the assault charge. They were all asked to make statements but they each declined.
32Common sense dictates that your behaviour on the occasion of the armed robbery wielding the knife and threatening the employees and then threatening the two young males, would have caused them to be fearful and concerned for their personal safety.
33It is necessary for the sentence to deter you and others from such offending, and on behalf of the community, I formally denounce your behaviour.
34I accept the submission that this is an offence that falls at the lower end of seriousness for this sort of serious offence of armed robbery. It was impulsive, opportunistic offending, committed whilst you were under the influence of drugs and alcohol. You behaved in an immature way, targeting the store in the way in which you did. Fortunately, the offence was of short duration and no person was physically harmed.
35I have regard to your personal history and background. You were born in Geelong and lived with your parents who separated when you were only an infant, following the breakdown of their relationship. You, together with a brother then continued to live with your mother.
36Tragically, she had her own issues with drug use and ultimately you were removed from her care by the Department of Human Services because of concerns for your safety and exposure to substance abuse.
37Your father John, then took over your care. He was a recovering drug addict. He dealt with his addictions and regularly attended NA and AA meetings. You lived with him and your brother in Footscray for the duration of your childhood. He struggled financially as a single parent but remained, and still remains, very supportive of you.
38Tragically, when you were only aged 14, your father was unexpectedly arrested and extradited back to Perth where he had to serve a six month sentence that related to some historical offending that occurred in the years well prior to your birth.
39His absence at such a time was very disruptive to your development. You were fortunately taken with your brother into care by a family whom your family knew through the local church.
40You struggled with your father's absence and during the time he spent in gaol, you only had one occasion where you were able to visit him for a short duration.
41It was around about this time, you started using drugs and alcohol heavily. You started using cannabis, and as well, you were drinking heavily. Your past offending history reflects very much that history of abuse of drugs and alcohol and over the years you have struggled with your addictions.
42There have, however, been some attempts for you to address your addiction and on two occasions in 2018, you were placed at Bunjilwarra, the Koori Youth Alcohol and Drug healing service that runs residential drug treatment rehabilitation centre for young aboriginals in Hastings.
43You experienced a relapse during your first stay, so you were referred to the Youth Advocacy and Support Service, YSAS, to detoxify, before continuing on at Bunjilwarra until your exit on 28 May 2018. You returned to Bunjilwarra in August of that year, and that was after a short time in custody on a four-week program through Raymond Hader Clinic, Geelong. You stayed at Bunjilwarra until your exit on 28 August 2018.
44It was significant that progress was noted during the time you spent at Bunjilwarra, and you were making significant efforts to improve your life in the context of a background of complex trauma and alcohol and drug abuse.
45They made a connection between the deterioration in your mental health and capacity to make good choices. It was said that they recommended continuing care to incorporate regular mental health support, and alcohol and drug treatment.
46I consider that your abuse of drugs and alcohol has its' genesis in your disrupted background and your early years, and I have taken that into account as a relevant mitigating factor.
47You have had little by way of formal education. I note that you left the local high school when you finished Year 9 because you were experiencing some difficulties at school, but then you had the opportunity of going to St Joseph's Flexible Learning Centre and you attended there off and on over the years.
48Your attendance was sporadic and eventually you dropped out because of your worsening alcohol and drug addictions. You have never been employed but you expressed a desire to undertake a TAFE course and to work in the future.
49I took into account in your favour the fact that you genuinely participated in the sentencing conversation at the hearing that was conduced in Mildura. You were challenged concerning your behaviour and responded appropriately. In particular, you offered a verbal apology for your behaviour and you said that if you could take away what you did, you would.
50You acknowledged it was a sad situation, and that you would not want to be in the shoes of those two store attendants, dealing with such behaviour and there was no excuse for your behaviour.
51Auntie Raylene advised you to get control of your drug use and to focus on a positive future through work, training or education. Uncle Peter condemned your behaviour. He told you that you had broken rules and that you must respect the rules. It is important for you to find out more about your aboriginal family history, for you to find out who you are and where you come from, and to be a better person and member of your community by finding out more about your culture.
52Your family is a well-known aboriginal family. Uncle Peter stressed the importance of your connections and urged you to respect yourself and care about yourself by making proper plans for the future.
53Terry Brennan, Alcohol and Drug Counsellor, from Mallee District Aboriginal Service spoke with you and told you something about your maternal grandparents. They grew up on a mission on the Lachlan River at Condobolin in Central West New South Wales.
54Both grandparents were described as hard-working, well-respected people. Terry Brennan urged you to act like a man and connect back to your people.
55Your father John, spoke of his very real difficulties that he had rearing you as a single father. He is a person who is strongly supportive of you and he expressed his love for you. He has regularly visited you whilst you have been in custody.
56He observed that you have made big changes since you have detoxed from drugs in prison and he said that a friend of his could offer you some work potentially, in carpentry, upon your release. He urged you to listen to the people giving you guidance, to seek out help and to heal.
57You have a very supportive family and your sister Katrina was also present at the plea hearing. She is present here today, having travelled down from Mildura this morning. You do have a broad group of people around you who are seriously committed to wanting you to succeed to be a better person.
58You are a relatively young man and I have had regard to the principles applicable to the sentencing of young offenders, in particular R v Mills[2], and significant weight has been given to your rehabilitation prospects. I have also had regard to the applicability of Bugmy[3] principles.
[2] [1998] 4VR 235
[3] (2013) 249 CLR 571
59I consider that you are an immature and impressionable young man who is vulnerable within the gaol system and ultimately what is best for you and the community is that you be rehabilitated.
60I fear that continued exposure to negative peer influences in the adult gaol system would have the real potential to impact adversely upon you and also your rehabilitation prospects.
61Overall, given your commitment to change and undertaking to take advice concerning treatment and rehabilitation in respect to drugs and alcohol and mental health, I consider that your rehabilitation prospects are reasonable, but it all depends on you making good your stated commitment to change.
62You have insight into the relationship between use of drugs and the impact that has on your behaviour, and in particular, upon your mental health. In the event that you were to resume using drugs and alcohol, you risk the prospect of further offending and a further term in imprisonment.
63In formulating the appropriate sentence, I have had regard to all the matters that were put in your favour during the conversation. The plea has real utility.
64I have already said it was entered at the earliest opportunity so that your plea will be discounted accordingly. You have spared the State the expense and necessity for a trial and you facilitated justice.
65You were fully cooperative and made full admissions at the time you were interviewed, and I have taken that into account in your favour. I do accept that you are genuinely remorseful. Your background has been given full weight in formulating the appropriate sentence.
66I consider that you are aware of what you were doing was wrong at the time and you have a capacity to appreciate the wrongfulness of your conduct, but I do consider your moral culpability was reduced by reason of your complex disadvantage during your childhood, and that moderates your moral culpability.
67I have regard to the information contained in the report of Dr Pandurangi, Consultant Psychiatrist, of 23 May 2019. He indicates that you need drug and alcohol rehabilitation and that you accepted, when interviewed by him, that that was necessary for you to undertake that to address offending behaviours.
68On your behalf, Mr de Witt sought an order that combined the time served to be followed by a Community Correction Order to be fashioned in a way to deal with your offending behaviour, in a culturally supportive manner such as being able to serve your Community Correction Order at Wulgunggo Ngalu Learning Place.
69Mr O'Doherty, the prosecutor, emphasised the importance of rehabilitation given your youth. He acknowledged your great motivation and positive supports from family and community, and agreed in the circumstances that such a disposition would be appropriate with the question of how much time to be served being a matter for the court.
70I have taken into the account the principles of totality and I note that the sentence imposed by Her Honour Magistrate Popovic takes into account an additional 30 days' time served, so I have had regard to that in formulating the appropriate sentence.
71I have been guided by the guideline sentencing judgement in Boulton[4]. I consider the order that I am about to make is one that adequately punishes you and provides for the best options for you for rehabilitation in the future.
[4] (2014) 46 VR 308
72You are still a very young man, and ultimately your rehabilitation is of great importance, not only to you, but to the community generally. You have been explained what a Community Correction Order means and the terms of the order that I am about to impose and you have indicated your willingness to consent to such an order.
73The order will contain conditions of supervision and treatment and rehabilitation for drug and alcohol and mental health, as well as offence behaviour programs, inclusive of attendance at Wulgunggo Ngalu should that referral be accepted.
74There will be judicial monitoring and the first occasion of that will be on Friday 27 September 2019 at 10 am, and that can be organised to be by video-link if you are still living at Mildura.
75In the event that you re-locate to Melbourne, you will have to inform the court through your solicitors of that, and separate arrangements can be arranged. I will ask that you do now stand please, Mr Naden.
76On the one charge of armed robbery and the two related summary charges, being summary Charge 7, commit indictable offence whilst on bail, and summary Charge 10, unlawful assault, you will be convicted and sentenced to time served, which I understand is 224 days, yes?.
77MR HARRISON: It is, Your Honour.
78HER HONOUR: To be followed by an 18 month Community Correction Order in the terms that I have described, that is, with supervision, treatment and rehabilitation including testing for alcohol and drug abuse or dependency, mental health and/or offender behaviour programs with judicial monitoring on Friday 27 September 2019 at 10 am. I make the disposal order sought, and finally the forensic sample order, given that that is not opposed.
79The only thing I need to tell you about that, Reggie, is that you will be required to give a scraping from your mouth. The police will give you a cotton bud to put inside your mouth and provided you do that, you comply with the terms of the order, but if not, they can use reasonable force including a blood test to take that sample, but hopefully that will not be necessary.
80That order is made having regard to the seriousness of the circumstances of the offending. I consider such an order is warranted. It is by consent and it is also in the public interest.
81I have signed that order as well as the Community Correction Order. I will get Mr de Witt to go through that with you, and the only other order is the s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of two years to serve 12 months.
82MR HARRISON: As Your Honour pleases.
83MR de WITT: As Your Honour pleases.
84HER HONOUR: Copies of that will be made available once I leave the Bench. It is intended that you be released today, once you are processed downstairs. So that is clear, yes? Good. All right, we can adjourn. Thank you.
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