Director of Public Prosecutions v Ormsby-Langdon
[2014] VCC 121
•14 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01190
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ORMSBY-LANGDON |
---
JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2014 | |
DATE OF SENTENCE: | 14 February 2014 | |
CASE MAY BE CITED AS: | DPP v Ormsby-Langdon | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 121 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms M. Casey | Robert Stary Lawyers |
HIS HONOUR:
1 Michael Ormsby-Langdon you have pleaded guilty to one charge of conspiracy to commit an aggravated burglary.
2 The prosecutor, Mr Pickering, opened the circumstances of the offending by reading from a written "Prosecution Summary Opening".
3 In short, the police had a group of offenders thought responsible for committing armed robberies under telephone and physical surveillance. You recruited at least one of these offenders to assist you to confront a cannabis dealer in his home and steal his cannabis. The person you recruited, recruited three others to help. You also recruited two neighbours and your cousin’s boyfriend.
4 Two cars went in convoy to execute the plan. Weapons were taken, although it was your expectation or perhaps hope that they would at most, by being presented to the victim, deter him from resisting by the presence of others, whether armed or not.
5 The convoy was intercepted and you were arrested en route.
6 You were drug affected and the prosecution maintains you were aggressive and not compliant with police demands and were injured in the course of your arrest, however there have been no lasting injuries.
7 Soon after your arrest you made admissions. You made further admissions in an interview. Indeed you made a lengthy statement implicating others.
8 Your neighbours and cousin’s boyfriend are no longer being prosecuted because charges were withdrawn or, in the case of one neighbour, there was discharge at committal. Of the other three co-accused, one was dealt with in the Children’s Court where he received 15 months detention for the current offending and other offending. The two other co-accused are contesting the current and other charges and are awaiting trial, to be heard in early 2015.
9 As discussed during plea submissions, I regard your offending as very serious. Ordinarily you would be imprisoned.
10 However, there are factors in mitigation that you rely upon that justify the imposition of a Community Corrections Order. You failed to attend court yesterday. I was satisfied that this was due to a misunderstanding on your part and in the circumstances I agreed to adjourn the matter for hearing today. I nevertheless required you to attend to answer your bail yesterday, which you did. In your absence yesterday your counsel indicated that she would submit that it was appropriate to release you on a CCO and, if that submission failed, she would argue for the imposition of a wholly suspended sentence.
11 I have had the benefit of extensive written material provided by your counsel prior to the plea. This of course was also provided to the prosecution. Having reviewed this material, Mr Pickering sought instructions concerning the proposed submission and informed me at the outset of plea submissions that the prosecution took the view that release on a CCO was open to me and "not inappropriate" in the circumstances.
12 The written material relied upon by your counsel was tendered. It consisted of a document headed "Chronology", another headed "Brief outline of submissions on plea", four Court Integrated Services Program (CISP) reports, a report from Windana and a neuropsychological report from Dr Rachael O’Meara.
13 I accept much of the submissions made on your behalf. However, I regard the offending as more serious than characterised by your counsel.
14 You must benefit from your plea of guilty, made at the first reasonable opportunity. It has utilitarian benefits for the administration of justice, saving time, expense and the need to call witnesses. Of course it reflects admissions you made to police. You must also benefit from the early cooperation in making admissions, informing the police of the role of your co-accused and making a statement.
15 I accept that your plea is accompanied by remorse and insight into the effect that your proposed conduct would have had on your intended victim.
16 I was told that the statement you made to police has now been lost. This is somewhat remarkable. You may be asked to make another. You may be asked to cooperate with police in the prosecution of your co-accused. However, it is unclear whether this will occur and no undertaking has been made by you.
17 I accept that the circumstances of your arrest by the Special Operations Group and subsequent imprisonment for 13 days before being released on bail has had a deterrent impact on you and encouraged your current determination to reform. I am prepared to accept your counsel’s statement that you “look back in horror” at your conduct.
18 Mr Pickering is correct when he says that it is important not to devalue the seriousness of the offending. You recruited others to assist you, discussions took place in your home, it was your plan and only you knew the target address.
19 You have a prior court appearance and although a without conviction bond was imposed, the offences were not trivial and the court would have expected you to learn from the leniency given to you.
20 The offending occurred in early January 2013. Over the last year, which is not much of delay judged by other cases, you have made considerable progress. I accept that this year in your life has meant a significant passage of time.
21 You were released on CISP bail. You took full advantage of the rehabilitative opportunities offered.
22 I accept your counsel’s submission that I should treat you as a youthful offender and that it is very much in your interests and perhaps more particularly the interests of the community if you are rehabilitated rather than sent to prison. I accept that it would be difficult for you to recover from a significant period of imprisonment and that your rehabilitative prospects are appreciably enhanced if your rehabilitation occurs in the community.
23 Your heroin use at the time of the offending is relevant to your rehabilitative prospects. You have now ceased using heroin and methadone. You have stopped drinking. You want to complete training as a chef, including study to this end. You have one year of your apprenticeship to complete. You are actively looking for work but have not worked since November last year.
24 You have underlying mental health problems that have connections to your drug use, which you seem to have employed to help you cope with stress and severe anxiety. You may have an Acquired Brain Injury (ABI) but further investigation is needed to determine this. Clearly, you require support and assistance concerning both your mental health problems and drug use. You are still using cannabis. You need to stop this.
25 Prior to the offending you contracted Hepatitis C due to intravenous drug use. The diagnosis seems to have had particularly deleterious effect on you and your ability to cope which was again compromised when your maternal grandmother died suddenly in March last year. You sustained significant head injuries resulting in loss of consciousness and requiring reconstructive facial surgery to your jaw when you were attacked after going to the aid of the victim of a group attack on St Kilda beach, four years ago. The injury was complicated by infection on treatment and still is problematic causing you pain and difficulty eating.
26 You are very fortunate to have family support. Although your mother, who separated from your father when you were young, has serious mental illness, namely schizophrenia and a bi-polar affective disorder, your father, who is a case manager with Disability Services and your grandparents support you. You are currently living with your grandparents and your grandmother attended court to support you.
27 The critical matters, as I see it, are that you are still relatively youthful, you have a long standing drug problem concerning which you have made considerable progress, you have been assessed as having mild symptoms of depression, severe symptoms of stress and extremely severe symptoms of anxiety, you may have an ABI, you may have undiagnosed ADHD. Any ABI may be due to your long term drug use as well head injuries, including loss of consciousness at the time of your arrest, or a combination of both.
28 You are currently determined to rehabilitate with particular emphasis on ceasing all drug use. You want to complete your apprenticeship and work. You have insight into and regret for your offending. You have strong family support. Since your release from prison, which I accept was a salutary experience for you even though it was relatively brief, you have been able to establish links to appropriate community services and medical assistance to help achieve your reform.
29 Accordingly, despite the seriousness of the offending I had you assessed for suitability for release on a CCO.
30 You were assessed as suitable. I accept the recommended conditions as appropriate. Can I ask you to stand up please, sir.
31 Accordingly, you will be convicted and released on a CCO - that is, a community corrections order - for two years. You are to be under supervision. You are to complete 250 hours of unpaid community work; you are to be assessed and treated (including testing) for drug use or dependency as directed; you are to be assessed and treated (including testing) for alcohol dependency as directed and you are to be assessed and treated for mental health as directed.
32 I noted in discussion that you should not consider the CCO a soft option. I consider I would have been justified in imposing imprisonment. If you breach the order I have made, you will be at serious risk of having imprisonment imposed.
33 I will make the order for the taking of the forensic sample. My reasons will appear in the order. Please understand that a police officer may use reasonable force to take the sample.
34 Anything that needs correcting that you can identify?
35 MS CASEY No, Your Honour.
36 MR PICKERING: No, Your Honour.
37 HIS HONOUR: Okay. You can come out of the dock, Mr Ormsby-Langdon. I will get you to sign the order. I will hand down the 464s to you, Mr Pickering. Keep one on the file. Do you want me to leave the Bench while you prepare that order? You have got it? Can I have the order back? I was going to make that a buccal swab, so that is what I will do. Is there something else with the order you were concerned with?
38 MR PICKERING: My learned friend believes that there might have been a sample already taken and this should be a retention order, but - - -
39 HIS HONOUR: Do you want to check?
40 MS CASEY: So a sample was taken, Your Honour, at St Kilda Road.
41 MR PICKERING: Yes, the record of interview seems to be saying, in that broken transcript sort of way, that some sort of swab has been taken.
42 HIS HONOUR: Do you want to check that? And if I you want me to make a retention order, I would make that.
43 MR PICKERING: We can't do that. The informant is not here because of the funeral she had to go to today. In the event, Your Honour, that it turns out that it has been taken and we can confirm that, would it be appropriate to simply resend the orders to Your Honour without further appearance?
44 HIS HONOUR: It would be, on the understanding that these orders would not be executed and they would be destroyed.
45 MR PICKERING: Absolutely, Your Honour. Naturally we would notify Ms - - -
46 HIS HONOUR: I mean it makes little difference whether another sample is taken or not but if you have already got one, it is much more convenient just to get a retention order.
47 MR PICKERING: Yes. My instructor will find out between now and next week.
48 HIS HONOUR: That is fine. That looks fine to me, would counsel just check it and we will have it signed.
49 MR PICKERING: Yes, Your Honour, no issue with that.
50 HIS HONOUR: Okay, have your client sign it. Is that the lot?
51 MR PICKERING: Yes, Your Honour.
52 HIS HONOUR: Thank you both for your help.
- - -
0
0
0