Director of Public Prosecutions v Parker
[2017] VCC 967
•18 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00797
Indictment No. C1610515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE PARKER |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 24 May 2017 | |
DATE OF SENTENCE: | 18 July 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Parker | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 967 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law - Sentencing
Catchwords: Robbery
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)
Sentence: 2 years’ and 6 months’ imprisonment with a non-parole period of 2 years’
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Plummer | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J. Miller | Haines & Polites |
HIS HONOUR:
1 Luke Parker, you have pleaded guilty to one charge of robbery contrary to s.75 of the Crimes Act 1958.
2 The circumstances of your offending are that on 19 December 2015, you and your co-accused, Jasmine Gilcrist, approached the complainant and told him that if he wanted to have sex with Gilcrist it would cost him $200. The complainant agreed to pay that sum for sex with her. He said that he would have to go home and get the money.
3 The three of you caught the train from Flinders Street Station to Lalor. The complainant went home and got money. He walked back and met up with you and an arrangement was made for him to pay for a room at a local hotel. The three of you then went to another local hotel for a drink and then began walking back to the first hotel. As you walked through a car park, you grabbed hold of the complainant around the throat. You demanded that he hand over everything he had.
4 From his neck, you ripped a gold chain. You tripped him over to the ground and kneeled on top of him. You punched him to the face. You demanded his ring and threatened to punch him again. The complainant responded that the ring in question had his daughter’s name engraved on it and asked you not to take it. Notwithstanding, you demanded the ring, threatening to punch him and he gave it to you. His bracelet was also pulled from his wrist.
5 Gilcrist then took the complainant’s mobile phone from his pocket and ran away. You were still on top of the complainant. You demanded his wallet, reached into his pants pocket and took it. You also took his driver’s licence and a Woolworths money card.
6 You told the complainant not to call the police. You said that you had his address, and if he told the police you would come and kill him. The wallet was handed back to him, but the driver’s licence, money and card were taken. You both stood up. You punched the complainant to the ribs before turning and running away.
7 The police arrested Gilcrist a short time later.
8 You were arrested on 11 January 2017 and taken to Broadmeadows Police Station. Due to your aggressive behaviour you were not interviewed by police.
9 The crime of robbery, I note, carries with it a maximum penalty of 15 years’ imprisonment.
Background
10 By way of background you are currently aged twenty-eight.
11 Your parents separated when you were very young and you were brought up by your mother and her partner. You resided with them in Seaford. You had no contact with your father up to your mid-teens. He resides in Queensland and you have had very limited contact with him to date.
12 You were educated up to Year 9 and left school having achieved the age of fifteen.
13 Your employment since leaving school has been fairly minimal and sporadic. You last worked in 2013, doing demolition work.
14 At the age of sixteen you were diagnosed with a condition known as haemochromatosis - a disorder involving excessive absorption of iron leading to damage and functional impairment of various organs - for which you were required to undergo venesection which, on my understanding, is a surgical removal of a vein or part of a vein at six-monthly intervals.
15 In 2015 you were diagnosed with testicular cancer and underwent surgery and chemotherapy. You require regular blood tests and scans.
16 You have reported making a number of suicide attempts for various reasons and that CAT teams were involved. Those attempts were by way of overdose of medication during times that you were affected by drugs.
17 You have reported a very heavy use of alcohol since the age of fourteen. You smoked cannabis from that age although apparently not in recent times.
18 You are currently being prescribed the antipsychotic medication, Olanzapine, and also Methadone.
19 You have never been a religious person, but approximately six months ago you converted to Islam. You are hoping to be more involved in Islamic life in the future.
20 A report from Mr Jeffrey Cummins, psychologist, dated 11 January 2017 was tendered by your counsel. He noted your history of dependence on alcohol, methamphetamine and heroin. He also noted that, at the time of your offending you were typically smoking cannabis daily, and often using ice and heroin. You did not present as having any obvious acquired brain injury. It would appear that you are of the opinion that you have mental health problems independent of your history of substance abuse.
21 Mr Cummins considered that it would be appropriate to have you neuro-psychologically examined. Notwithstanding, no steps have been taken to arrange such examination and your counsel, at your plea hearing, informed me that you had instructed him not to seek any adjournment for such examination to occur. I note that there has been ample time for you to arrange such an examination to occur. Further, I note that there has been ample time for you to arrange such examination should you have wished to do so in order to rely on a further report at your plea hearing.
22 Mr Cummins was of the opinion that it was likely that you had a personality disorder and displayed characteristics of both a borderline personality disorder and an antisocial personality disorder. He was also of the view that your mental health problems are most probably integrally related to your chronic use and abuse of various substances, including alcohol.
23 He considered that your insight into the seriousness of your offending on the occasion in question, and into your criminal history in general, was limited. He considered that your prognosis was guarded.
24 I note Mr Cummins’ comments concerning your failure to adhere to your medication at times and his report of your comments concerning your excessive consumption of alcohol whilst not in custody.
Prior convictions
25 You have a number of prior convictions of significance going back to the Melbourne Children’s Court in 2006. Putting the Children’s Court convictions to one side, you have been convicted of:
·Two counts of armed robbery in November 2007;
·Intentionally damaging property, threatening to inflict serious injury, and making a threat to kill in October 2008;
·In March 2010 you were convicted of intentionally causing serious injury and sentenced to 54 months prison (4 ½ years). I note that this conviction arose from an incident where you stabbed a housemate in the stomach. You were released on parole in March 2012;
·In January 2014 you were convicted of assaulting police, being drunk in a public place, criminal damage (with intent to destroy or damage), and possessing a controlled weapon (which I was informed was a meat cleaver) without excuse. I was informed by counsel that these offences occurred in January and June of 2013 whilst you were on parole. Your parole was cancelled in June or July 2013 and it appears that you served the whole 54 month sentence previously referred to. You were released in April 2015, only 8 months prior to the current offences for which I am to sentence you.
26 On any view, your criminal record, for a person of your age, is appalling. You have shown yourself to be a person with little respect for the law.
27 On the basis of the material put before me, I consider that your prospects of rehabilitation to be relatively poor.
Sentencing principles
28 The purposes for which a court may impose a sentence in respect of an offence include a number of matters including the denunciation of the offending conduct, to deter you and others in the community from committing such offences in the future, and the protection of the community generally.
29 I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them, and your personal circumstances. I have also taken into account each of the matters set out in s.5(2) of the Sentencing Act 1991 (Vic).
30 In particular, I have taken into account your relatively young age and your relatively early offer to plead guilty to the charge of robbery.
31 Your counsel submitted, and I accept, that you are a young man who has spent a disproportionate amount of your adult life in custody. Despite that, you have never completed a community-based disposition.
32 I accept that your early plea to this offence is an indication of some remorse on your part for it. Further, that plea has utilitarian value in that it is now unnecessary for a full trial to be held and witnesses, such as the complainant, will not be required to attend for evidence.
Sentence
33 At your plea hearing, submissions were made by your counsel that a community correction order would be a suitable sentence, at least in part. I am in receipt of a report from Corrections Victoria dated 24 May 2017 in which the author has reported that you are considered suitable for a CCO.
34 Such a report does not, of course, bind me in any way.
35 Notwithstanding the report, given the serious nature of the offence for which you are to be sentenced, your extensive prior convictions, and taking all of the circumstances into account, I am satisfied that the purposes for which this sentence is to be imposed cannot be achieved by a sentence that does not involve a significant period of immediate incarceration.
36 On the charge of robbery, you are convicted and sentenced to 2 years’ and 6 months’ imprisonment.
37 I direct that you shall not be eligible for parole until you have served 24 months’ of that term.
38 Now, Mr Plummer, I have a record that there are 552 days by way of pre-sentence detention served, not including today. Is that still correct or have I not taken into account all of the period?
39 MR PLUMMER: Your Honour, my calculation is 554. I believe as at 24 May, the plea date, it was 500 days not calculated for 54 days up to and including 17 July, yesterday.
40 HIS HONOUR: Mr Miller, do you - just not sure where I got 552 from. I thought it might have been one of your written submissions.
41 MR MILLER: It wasn't from my submissions, Your Honour, I actually had a note that it was 499 days on the May date.
42 HIS HONOUR: Well, your client will be pleased that it's a bit more than that.
43 MR MILLER: I'm happy to run with what my learned friend is saying.
44 HIS HONOUR: Right. I will.
45 MR PLUMMER: My instructor has done the same calculation and come to the same conclusion.
46 HIS HONOUR: 554?
47 MR PLUMMER: Yes.
48 HIS HONOUR: I note that you, Mr Parker, have previously served a period of 554 days by way of pre-sentence detention not including today and I direct that that period be reckoned as detention already served under this sentence.
49 I declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that had you not pleaded guilty to this offence I would have sentenced you to 3 years’ and 6 months' imprisonment.
50 Now, in terms of ancillary orders. What is sought, if anything?
51 MR PLUMMER: No orders sought, Your Honour.
52 HIS HONOUR: Anything else that counsel wish to bring to my attention?
53 MR PLUMMER: No, Your Honour.
54 HIS HONOUR: Thank you, Mr Parker can be taken downstairs.
‑ ‑ ‑
0
0