Director of Public Prosecutions v Oxborough

[2021] VCC 1608

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00093

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON OXBOROUGH

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2021 & 28 September 2021
DATE OF SENTENCE:	20 October 2021
CASE MAY BE CITED AS:	DPP v Oxborough
MEDIUM NEUTRAL CITATION:	[2021] VCC 1608

REASONS FOR SENTENCE

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Subject:         CRIMINAL LAW- Sentence- plea-

Catchwords: Armed Robbery- Obtain financial advantage by Deception- Accused acted in Company- category 2 offence- consideration of S.5(2H) of Sentencing Act- ‘exceptional circumstances’- substantial and compelling”- offender quadriplegic confined to wheel chair- major depressive disorder and anxiety- burden of imprisonment- remorse- delay- leniency.

Cases Cited: Farmer [2020] VSCA 140; Fariah [2021] VSCA 213

Sentence:Total Effective Sentence – 9 months imprisonment, 3-month licence disqualification

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Paganis	Mr J Sivaratnam
For the Accused	Mr C Oldham	Ms N Valos – Valos Black and Associates

HIS HONOUR:

1Brandon Oxborough, you pleaded guilty to one charge of armed robbery and one of obtaining financial advantage by deception.

2The circumstances are outlined in the prosecution document which was tendered upon your plea.  I will briefly summarise those events based on that agreement statement of fact.

3At the time of your offending, you were living in Williams Landing with your mother Tyler Oxborough, your sister, who is a co-offender in this matter.  You were 22 years of age and she was 24 years old.  Another co-accused, one Seth Hooper, was 19 years of age and was Tyler's boyfriend.  He lived in Maryborough.  Another co-accused, Justin Selowa, was 26 years of age and was another friend of Tyler.

4You were involved in a serious motorcycle accident when you were aged 20 and as a consequence you were rendered a paraplegic, being confined to a wheelchair for the rest of your life.

5On 2 November 2019 the four, which I have mentioned including yourself, were together at your residence.  You all devised a plan during the evening by which your sister Tyler would entice a male person by way of her profile on Facebook to make contact and then attend your premises purportedly for purposes of a sexual encounter.  The male would then be robbed when he was in the premise.

6Your sister added a man as a friend to her Facebook page that morning, Mr Atkins, who was not known to any of you.  Your sister struck up a conversation which included sexual references and then after a few hours the prospective victim was invited to the Williams Landing premises.  He was instructed to park in a particular place and at about 10.21 am he arrived and parked as instructed.  He noted that the garage at the rear of the premises which he approached was half open.  He came in and was greeted by Tyler who allowed him to kiss her on the cheek.

7Tyler was wearing a coat with nothing else underneath and she sat down with Atkins on a couch in the garage to chat.  You and the other car offenders went to the victim's vehicle and after a discussion closed the roller door leading out to the laneway and then from inside the premises entered the garage by lifting another roller door that gave access to the house.

8You all entered and surrounded the victim.  You were in a motorised wheelchair yourself.  When the victim got up to leave you told him he was not going anywhere.  You said, 'Maybe I'll cap you with my gun'.  You then aggressively demanded money from him.  When you were told that he did not have any money on him you told him that he could keep his car if he gave you a $1,000.  You told him that he could transfer these funds electronically.  The victim logged onto his bank account and showed you he had insufficient funds to meet your demand.

9You then demanded to call a friend to transfer money.  The victim wanted to call his mother to transfer money so that he might leave but you stopped him from calling.  All of you at that point became agitated.  One of you put on leather gloves and extended a black baton in a threatening manner towards the victim.  One of you said that he was 'fucked if I don't give them the money'.  You all then started making demands.

10You told him to take off and handover his Samsung watch worth about $750.  You told him to handover his mobile phone.  And when the victim retrieved it you snatched it off him.  He was asked what else was in his pocket.  When the victim went to empty his pocket the key to his 2013 Ford Ranger fell to the ground.  Selowa picked them up, exited the garage and drove away with Atkins vehicle.

11When you opened the garage door you saw that his car was gone.  The car contained various tools, a wallet, bank and business cards, also a laptop computer, an Apple iPad mini 3 and three large containers of shoes and clothes, which belonged to a friend of his.

12You and Hopper surrounded the victim and demanded money again.  When he exited the garage door you followed him for a distance and asked him to provide the passcode for the iPad which was inside the car which Selowa had told you about.  He gave you the password and kept walking towards an open sportsground.  You instructed him to go to the corner of the main road and wait there till you would bring his car back.  That did not happen.  He went to the train station and caught a train to a friend's house.

13He was told by one of you that you would come to his house if you went to the police.  Within a few minutes you started sending messages to the victim's mother.  In the message you pretend to be the victim but was sent by you and asked the victim's mother to transfer $500 to you because he was in trouble, effectively to him, and his car would be taken from him by certain men.  She was instructed to send money and she transferred $500 into your Westpac account.  The mother continued to receive distressing messages about the men taking the car and being prevented from answering.  She tried to call her son but was fearful and shaking with fear.

14Later at about 12.30 pm, Mr Atkins managed to call his mother and told her he had not sent the messages.  Later that day he reported the incident to police.

15The following day Selowa was arrested following a police pursuit and the victim's Apple iPad and other documents were found in the car.  You were arrested the following day and the baton used in the offending was found in the living room of your residence.  The victim's phone was found in your bedroom.  An Apple Mac computer with Tyler's messages was also found in the garage to that address.

16Investigators traced the transfer of $500 through Westpac bank records to your account and discovered the money had been withdrawn subsequently at a hotel.

17A few days later Tyler was arrested.  The victim's Ford utility was recovered on 11 November.  The rear canopy and property from the vehicle had been removed.

18When the police questioned you formerly in an interview on the 4th you told him you were 'setting up cunts using Tyler's Facebook telling the person I'm going to fuck them'.  And your decision to commit the robbery was to do something to prevent the person from 'raping your sister', a disingenuous answer at the very least.

19You said it was Selowa who pulled out the baton and that he took the victim's car and you tried to get him to return with it to avoid police involvement.

20You said you became aware of the plan about 15 minutes before the victim's arrival.  You said that Selowa requested the transfer of money from the victim's mother and that you shared the money 50/50 with Selowa once withdrawn and that you withdrew your share at the hotel.

21You told police you told Mr Atkins not to go to the police.  The baton you said was yours.  You also told the police that Selowa owed you half a bag of gear and that in fact you were not mates.  There were some suggestions in your answer that you had asked Mr Akins to bring drugs to your place.

22No formal victim impact statement was received upon your plea; however, I can reasonably infer that the victim would have been fearful and traumatised by these circumstances.  The offending took place with a number of people arrayed together against him in a closed environment by the use of threats and intimidation and with the use of a weapon.  He was restrained, preventing from making calls, his car and personal items were stolen.  Then his mother was also inveigled into this harebrained scheme.  She too was fearful and anxious, and I take this impact into account.

23Such offending causes trauma, which is often long lasting, profound and which effects many aspects of victims’ lives, from their social and home life, to their work and lifestyle, to their mental health, sleep, sense of safety, hypervigilance, lack of trust and confidence in everyday dealing with others.  And that is why armed robbery carries a maximum term of imprisonment of 25 years.

24By this maximum the legislators have indicated the gravity of such conduct and it is reflective of the consternation, fear, and anxiety which the community and victims experience.  It is conduct which must be deterred, both generally for those who are minded to behave in this way and you specifically in the future.  The court must adequately denounce such conduct in unequivocal terms and protect the community from such criminal disregard for the victim's rights and everyday entitlement to live free of violence, threat, force, and dishonesty.  This is so irrespective of the fact that your criminality on one view was pathetically amateurish, not well thought out, bound to fail and essentially foolish.

25The potentially and actuality of distress and impact on the victims is significant and I consider that this is a serious example of this serious crime.

26Similarly, obtain financial advantage by deception carries a maximum penalty of 10 years' imprisonment.  Again, a serious offence which caused distressed to a second victim, an elderly person, the victim's mother.

27I understand that your co-accused's case, Selowa, proceeded through a contested committal and after that the matter resolved to a plea currently listed before this court.  The matter involving your sister will be heard before me in late November as a plea.

28The offending took place in November 2019.  The first committal conference took place promptly in late January 2020, however, three other committal hearing dates in April and June were vacated due to the pandemic.  It was relisted in January of this year and you entered a plea of guilty prior to the examination of witnesses, which however proceeded in relation to other co-accused.  You were bailed on that day, on the day of your arrest and have remained on bail until the plea hearing and this hearing.  I take this delay into account as having held these matters over your head for this period.

29I take your plea into account.  I consider that given the circumstances pertaining to the pandemic that your plea was entered at an early opportunity.  I accept that your plea is some evidence of remorse and that some answers in your interview show a degree of remorse while at the same time minimising your role and placing the blame for the deception and much else Selowa.

30I accept that you also expressed remorse to Ms Carla Lechner who provided the court with a report dated 1 April 2021.

31Your plea has a utilitarian value having avoid a criminal trial.  Such value is enhanced as having been made at a time of pandemic when the delay consequent upon that pandemic have severely disrupted the ability of the criminal justice system to deliver its outcomes.

32Your plea and acceptance of responsibility enables finality to be reached at this difficult time.  The plea is also made at a time when it exposes you to incarceration which is made more burdensome by the pandemic and therefore it must carry a greater than usual mitigatory value.

33The current pandemic renders more burdensome any period of reclusion by the restrictions on prisoners by way of lockdown, quarantine periods, the suspension or decrease in the delivery of services, programs, work opportunities, vocational and psychological programs and has severely impacted visits and contacts, and generally limit to an even greater extent the usual experience of incarceration and I take these considerations into account.

34Before moving to your personal circumstances, I note that armed robbery is category 2 offence under s75A of the Crimes Act as the offence was committed in company.

35In relation to the provisions of the Sentencing Act s3(1) and the definition part sDA(iii) the effect of the sections and s5(2A) to 2HA, the court must impose a sentence of imprisonment excluding a community corrections order unless one of the circumstances outlined are met.

36The prosecution submitted that it was not of the view that these restrictions apply to sentencing for the second charge.

37The defence at the first plea hearing sought to argue that your disability brought your situation under the coverage of the exceptional circumstances section, s5(2H), given the matters that pertain to the extent of the disability and required.  However, there was a dearth of material on which the defence could rely and so a report was sought from Corrections to inform the court.  I will come to this matter in particular in a moment.

38I take your personal circumstances into account.  You are 24 years of age.  At the time of the offending, you were four months short of 23.  You were born in Victoria and raised in Maryborough and Werribee.

39Tyler is your older half-sister by a year or so and you have five half siblings from your parents’ subsequent relationships.  You currently reside with your mother in Ballarat, Tyler, and a younger sister.

40In September 2017, aged 20, you were involved in a serious motorcycle accident as I have mentioned which left you confined to a wheelchair.

41You left school aged about 15 and although you commenced a civil construction TAFE course you did not complete it.  At age 16 you were employed as a steel fixer four about a year but thereafter you were unemployed for a couple of year or so prior to your accident.  You have not been employed thereafter.

42Carla Lechner is a clinical psychologist, and she assessed your situation and state of mind and provided a report dated April 2021.  Firstly, she noted your prior criminal history.  In 2019 matters of criminal damage and drunkenness were adjourned with an order for compensation and for you to attend upon Andrew Sinclair, a psychologist.

43A month later you were again before the court, this time in this court for driving whilst impaired by drug and driving whilst unlicenced an unregistered vehicle.  Without conviction the matter was again adjourned together with a licence disqualification and a bond to be of good behaviour.  I note that you committed these offences whilst the subject of this indictment before me during the time of this adjournment on that undertaking which was to expire in January 2021.

44Ms Lechner wrote of your teenage years which were said to be tumultuous, rebelling against your father, early exit from school and association with negative peers which led to early drug use.

45You were in a rehabilitation centre some eight months after the motorcycle accident.  You suffer chronic pain and chronic depression.  You reported that you were at a particularly low point in your life at the time of these offences.  You wanted money for drugs and gambling.

46Ms Lechner diagnosed a stimulant use disorder now in partial remission as a result of your trying to curb your drug use.  She also diagnosed a major depressive disorder which is clearly related to your paraplegia.  You require assistance with a range of daily chores, including showering and toileting.  After the accident you relapsed into drug use again even though the move to reside in Ballarat was in order to move away from negative influences.  You impressed as low-average intelligence with strong feelings of helplessness and hopelessness.

47You are close to your family but not with your father and you are close to your partner.  You have severed your ties to your old circle of drug using friends you told Ms Lechner.

48You began cannabis use at age 13 and ice use at 16 leading to antisocial behaviours.  You are currently prescribed painkillers.

49The psychometric testing confirmed your severe chronic clinical depression, your anger and resentment towards your father have 'converged with anger and grief associated with your injury and altered life'.  'You would benefit', she writes, 'from intensive treatment for your depression with medication'.

50As to the offending you told Ms Lechner that your sister was on drugs and when Mr Selowa baited the victim to attend you were worried for her and you went to rob him of drugs, which you said you did, and that after Selowa left with the car you decided to arrange the transfer of funds from the victim's mother because you felt ripped off.  You said you just wanted money for ice and that you had a bad gambling addiction at the time.  You told Ms Lechner that you acknowledge the dumb spur of the moment decision with regret and remorse.  You tried to get Selowa to bring the car back.

51You told her that you were also upset because you had recently broken up with a girlfriend.  You express your fear of incarceration and of your vulnerability in an environment which may lead you back to drug use.

52Ms Lechner opined that you would find that environment difficulty on account of practical issues and on account of what she called your parlous mental health.  She noted your depression is thinly veiled and that you find it hard to take alternative perspectives and to believe that you can regain agency in your life.

53You report high level of psychological distress, extreme depression, severe anxiety.  Your mental state, according to Ms Lechner, undermines your ability to make reasoned judgements and decisions.  She noted you felt ashamed of your actions and felt sorry for the victim.  You have denied involvement in the planning of the robbery both to Ms Lechner and in your interview but became involved 'on the spur of the moment', which was characterised as opportunistic upon your plea.

54However, it took place in circumstances I have already outlined and continued well beyond its commencement aims.  It was submitted that your situation provides the application of s5(2H) to impose a community corrections order as an alternative to imprisonment.  I will deal with this submission in a moment.

55As to application of Verdins principles it was conceded that Ms Lechner's report did not assist in arguing that a connection could expressly be made between your depression and the offending so as to reduce your moral culpability or the need for general or specific deterrence to be moderated.  Nevertheless, it was submitted that some realistic link between those matters gave rise to a deterioration of your mental state, which is deserving of some consideration.

56This combined with your paraplegia would render imprisonment more burdensome than a person without this combination of personal factors and facts the court should take into account in mitigation of sentence.

57It was also submitted that while not strictly speaking a youthful offender the court should consider your relative youthfulness as requiring rehabilitation to be given appropriate weight with your prospects being good, it was said.

58It was also submitted that delay is a strong mitigatory factor in this case.  In fact there is a fairness and rehabilitation components in delay which I have considered and will take into account in your favour.

59A number of cases were mention in order to inform the court as to current sentencing practices, one of the considerations in the sentence synthesis.

60The prosecution submitted that armed robbery was a very serious example of this crime.  And as to the deception charge thought the momentary value of the offending was not high, it involved some complexity and involved another victim.

61The prosecution submitted as to Verdins no realistic connection between the mental impairment and the offending could be said to have been demonstrated, particularly in view of your use of drugs at the time.  However, the application of factors five and six were not gainsaid by the prosecution.

62The prosecution also provided some comparative by way of cases to assist with the matters of current sentencing practices.  It was contended that a prison sentence was the only appropriate disposition with a non-parole given, it argued, that no exception could be made out.  It also argued that additional material from Corrections should be sought to clarify how your particular circumstances would be dealt with by Correctional authorities.  The plea was adjourned for these purposes.

63An affidavit was received from the court, dated 23 August 2021, it was authored by Scott Swanneck, director of Health Services and Clinical Governance Justice Health Unit for the Department of Justice and Community Safety.  Justice Health is responsible for overseeing the delivery of all healthcare services to prisoners in the Victorian Correctional system.  Whilst Mr Swanneck is not able to write as to the specific medical requirements that you may have as a result of your paraplegia, he outlined in a very fulsome manner the services within the prison system, which support the management and treatment of patients based on their clinical needs.

64Primary, secondary, and tertiary health care right up to the most complex and specialist type of clinical care was described based on the principle of community equivalents.

65We are right to continue.

66MR OLDHAM:  Yes, Your Honour.

67HIS HONOUR:  Chronic health plans are developed and implemented for prisoners with chronic health conditions.  I am informed that there is however limited capacity for supported residential assistance while in disability cells which have limited availability.  Your disability may inhibit your access to some prison locations.  Some locations provide subacute inpatient cells; however, these provide limited opportunity for social and emotional interaction with other prisoners or engagement with rehabilitation programs.

68Mr Swanneck writes that based on the information provided by the occupational therapist, Mr McCaffrey's, whose letter I shall refer to in a moment dated 4 May 2021.  That it is likely that you will be placed in a subacute medical unit where you will receive care from the health staff at the particular prison to meet your residential and healthcare needs.

69The pandemic is another aspect which I will address, and which Mr Swanneck addresses in his affidavit in some detail.

70Mr McCaffrey, your occupational therapist, wrote a letter for the court.  You were originally treated by Mr Dodds, a senior OT at the NeuroRehab at home between 2018 and 2020, and thereafter from February 2020 by Mr McCaffrey.  You require OT treatment to address functional issues, that is the resulting loss of motor function and sensation from mid-chest level down.  He described the tasks you can perform including self-propulsion, side transfers between surfaces, functional tasks at benches, hand basins and desktops, bed transfers, transfer over a mobile shower commode, to dress independently lying on your back in bed, managing toileting routines.  For transfers between uneven surfaces, you may require a hoist transfer with the help of one person.  Although you have not utilised attend and care support ongoing specialist physical assistance has been provided by your family.

71TAC has also provided once daily care assistance and you require assistance for steep ramps, uneven surfaces, small steps, some meal preparation.  The support with daily personal care tasks is an ongoing need.  There are health related risks which require monitoring to avoid the potential for infections, fissure wounds and injury from falls.  Your equipment requires servicing, and you would require level entry ramp access to spaces and adequate circulation space to use your equipment.

72Mr McCaffrey's not familiar with what is available in prison to meet your health-related needs and whether they can be adequately met.  He stresses the need for high levels of monitoring and support, for access to appropriate environments.

73Your mother, Tanya Bridges, also wrote on 4 May 2021 a brief note.  She is your carer, in effect.  She arranges appointments and medication.  She writes of the support required in relation to your functions.  She writes of the trauma the accident caused to you and to the family and she remains supportive of you and for your aspirations for the future.

74These factors outlined above are matters which require consideration.  I do take into account your physical circumstances and they will render your imprisonment more burdensome.

75I take these into account in combination with your state of mental health in mitigation of sentence.  I also take into account your relative youth and the mitigatory aspect of delay, which I have mentioned, which provided some aspects of rehabilitation which are ongoing.

76In particular, the situation is not usual but its degree of unusual difficulty in terms of reclusion does not in my view amount to substantial and compelling.  In my view, this is one of the cases in which the operation of s5(2H) will be harsh.  The stringency of the test cannot be avoided.  Of course, the evaluation is never a simple one but while there is no onus on you to satisfy me of these tests of 'exceptional and rare, substantial and compelling' in the words of the section, the task of this evaluative judgement remains with me after the relevant underlying facts have been established.

77In my view this is one of those cases because of the type of offence where a term of imprisonment is inevitable.  In my view, this case is able to be distinguished from Farmer v The Queen [2020] VSCA 140. In that case a substantial physical disfigurement which affected the offender's ability to lead a normal life had a clear and direct link to his decision to offend, which significantly reduced his moral culpability, that is not the case here. Your offending was motivated by the need for money for drugs and gambling.

78Whilst this case can also be distinguished from Fariah v The Queen [2021] VSCA 213 on the facts of the offending and in relation to the relevant background of the offender because in that case the outcome may be way of the actual sentence or useful guide in a case where like there the armed robbery despite the hurdle of s5(2H) not able to be overcome allowance was made to the factors which do pertain to you in the face of an offence which unlike what the prosecution submitted, and despite being serious is not in the worse category and was not very, very serious.

79The totality of these factors mean that a period of incarceration will be substantially reduced to reflect these factors.  I find that given ongoing support and targeted therapy your prospects of rehabilitation are good.

80In particular, circumstances while recognising the primacy of general deterrence for a serious criminal offence, denunciation, community protection and just punishment, must give some weight to the application of parsimony and mercy to an extent that these will be a significant reduction in the sentence.

81Taken together with the value and weight to be accorded to your plea and the effects of delay as mitigatory factors I consider that a lenient sentence is appropriate.

82Nevertheless, you committed a serious offence.  Your period of imprisonment will reflect these factors and I find the two offences form part of a course of conduct over a reasonably limited span of time, but they do not necessarily meet the description of one transaction or one episode of offending as such.  Although the majority of the sentence pertaining to the obtaining financial advantage by deception will be concurrent.  There will, however, be appropriate and sufficient cumulation.

83Brandon Oxborough, on the armed robbery you are convicted and sentenced to eight months' imprisonment.  On the obtain financial advantage by deception you are convicted and sentenced to six months' imprisonment.

84I order that one month on Charge 2 be cumulative on Charge 1, making a total effective sentence of nine months' imprisonment.

85I do not think that there were any other - I think there may have been a disposal or forfeiture order, Ms Paganis, can you enlighten me about that?

86MS PAGANIS: Yes, Your Honour, there were no disposal or forfeiture orders sought because there were still outstanding matters for some of the co-accused. It was my understanding that there was an order being sought pursuant to s89(4) of the Sentencing Act in relation to the accused's licence.  And correct me if I'm wrong because I didn't appear in either of the previous hearings but from the paperwork, I have is that you must suspend his licence because of the (indistinct).

87HIS HONOUR:  Is there a minimum period or is it a totally discretionary period?

88MS PAGANIS:  There's no minimum period attached, Your Honour, and if no period is specific it will default to a period of three months.

89HIS HONOUR:  I am content with that period.  But I will confirm that in my order.  His licence is cancelled, and he is disqualified for a period of three months.

90MS PAGANIS:  Thank you, Your Honour.

91MR OLDHAM:  Your Honour pleases.

92HIS HONOUR:  There are obviously some arrangements that need to be made.  I will leave the Bench.  I note also that Mr Oxborough's family's court although there are limitations because of the structure of the dock if they - I will leave and he can speak to them.  Unfortunately, at this point they will not be able to assist him physically, but they can speak to him until he is ready to be taken.

93MR OLDHAM:  Before Your Honour goes, sorry, there is one matter I'd like to raise.

94HIS HONOUR:  Yes, certainly.

95MR OLDHAM:  Mr Oxborough has a number of personal items that relate directly to this condition.

96HIS HONOUR:  Yes.

97MR OLDHAM:  And I'm seeking leave that Your Honour make orders that he be able to take those items into custody with him so as that he has them available for Corrections staff when they take him into custody.

98HIS HONOUR:  Yes.  I have yesterday contacted or had contact made.  It may have been through the OPP or directly with the office - police here to make sure that there are proper arrangements in place.  Both with the police and with correctional authorities to be put on notice that Mr Oxborough's to be given every assistance possible, both whilst here as he transfers to imprisonment and beyond.  So whatever material he has which he needs to take with him correctional authorities and police should assist him in that without any hesitation.

99MR OLDHAM:  As Your Honour pleases.  Thank you, Your Honour.

100HIS HONOUR:  I will stand down.

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