Director of Public Prosecutions v Parker
[2021] VCC 984
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY PARKER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2021 | |
DATE OF SENTENCE: | 22 July 2021 | |
CASE MAY BE CITED AS: | DPP v Parker | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 984 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – attempted armed robbery – complicity – Koori Court sentencing conversation – powerful mitigating factors – delay – reasonable rehabilitation prospects – discount for plea of guilty
Legislation : 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; Bugmy v R (2013) 249 CLR 571; Boulton v The Queen (2014) 46 VR 308.
Sentence: Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plumber | Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms A Burnnard | Greg Thomas Solicitors |
HER HONOUR:
1Anthony Parker, you have pleaded guilty to one charge of attempted armed robbery.
2In addition, you have admitted your prior criminal history. You have three previous court appearances spanning a period from 21 February 2012 to 11 December 2014. There are two appearances recorded in the Wodonga Children’s Court in 2012 and one appearance in the Wodonga Magistrates’ Court on 11 December 2014.
3There is one matter of some relevance. On 21 February 2012 you were convicted and ordered to be detained for a period of 6 months in a Youth Justice Centre for an armed robbery charge. You were released on Youth Parole which was successfully completed.
4I note, however, that there has been a considerable gap since your last court appearance on 11 December 2014.
5The current offence was committed with your younger brother, Jack Parker, who was aged 21 at the time of the offending. You were aged 24 and are now aged 26.
6On 7 October 2019, Jack Parker was convicted of attempted armed robbery and ordered to complete an 18-month Community Correction Order with special conditions namely; supervision, 200 hours of unpaid community work, conditions that he participate in drug and alcohol assessment and treatment, as well as treatment to assist rehabilitation for mental health issues and to participate in programs to reduce the risk of re-offending.
7Jack has a limited criminal history with there being only one prior appearance at the Children’s Court in February 2012 following which he was placed on probation for six months.
8I shall now proceed to sentence you based on the Summary of Prosecution Opening on Plea dated 20 April 2021.
9On Saturday, 2 February 2019, at approximately 9.30pm, you and Jack, were walking together and approached a male driver who was sitting in his vehicle in Barker Street, Sunshine. Jack stood next to the driver’s side mirror and began to speak to the victim through the open window. He asked him where he came from and could he have a cigarette. The victim told Jack that he did not smoke. Jack then looked into the victim’s vehicle and asked him what was on the passenger seat. The victim turned around to look at the passenger seat. As he did so Jack placed his arm through the window into the vehicle. He was holding a knife that was approximately 4 inches in length. He held the knife against the victim’s throat and said, “Give me the money”. The victim explained that he did not have any money. The demand for money was repeated three or four times. The victim was asked to give up his wallet. The victim pulled his wallet down from the driver’s side visor and tried to hand it over but was shaking so much that he dropped it. The victim told Jack that he had no money and offered a bank card instead (Charge 1, attempted armed robbery).
10At all times you were standing next to the vehicle behind the driver’s side door close to your brother. You were leaning onto the car and did not say or do anything.
11The victim was stabbed in the right shoulder with the knife, following which you and your brother both ran away.
12Police were contacted and attended.
13The victim was taken to the Royal Melbourne Hospital and treated for a deep stab wound to his shoulder.
14You were arrested a short time later whilst travelling on a train with your brother. When Jack was searched, a knife was found in his pants.
15You were taken to the Sunshine Police Station where a record of interview was conducted. You denied any involvement in the offending. You admitted to police that you were intoxicated and that you had been drinking that afternoon with your brother, Jack. You had walked to the Church Hill Cellars to purchase more alcohol, and then you had returned to your sister’s house. At around 9.00pm, you and your brother walked towards the Sunshine Railway Station.
16The prosecution case on the plea is that you were the second offender identified by the victim. You are guilty of attempted armed robbery on a complicity basis, having entered into an agreement or understanding with the primary offender prior to the commission of the offending.
17Your brother, Jack Parker, was previously sentenced on the same basis, that is a complicity basis, as the second male in the offending.
18The prosecution does not allege that the injury inflicted upon the victim was part of the agreement. You are not liable (either directly or by virtue of complicity) for the injury.
19The offending has had consequences for the victim, Mr Gengaratharamoorthy. He sets out in his Victim Impact Statement, declared on 2 July 2019, the impact of the offending. I have had regard to the relevant portions.
20He wakes at night as he is disturbed by the memory of the crime. This experience has triggered memories of prior trauma that he experienced in his former homeland of Sri Lanka. He is very fearful of strangers and has trust issues and has become more security conscious. He is very anxious and only socialises with an elderly work colleague.
21Given your role and the circumstances of this matter, I consider that this example falls within the lower mid-range of seriousness for this type of offence. The offending was opportunistic and was committed in the context of you being heavily intoxicated.
22I accept your explanation namely, that you had been abstinent from alcohol since 2014, but you had begun to drink heavily that day due to being upset upon learning that your beloved grandfather had been diagnosed with cancer and was gravely ill. He has subsequently died.
23Whilst explaining your behaviour it does not excuse your behaviour.
24You now appropriately acknowledge that what you did was wrong, and you have expressed sincere regret and remorse for your offending.
25Nonetheless, the fact that you approached the victim, who was vulnerable, being alone in his car late at night, accompanied by your brother, who was armed with a knife that was used in order to effect the attempted armed robbery, must be condemned.
26Attempted armed robbery is a serious offence that is in part reflected in the maximum penalty prescribed by law of 20 years’ imprisonment. On behalf of the community I must condemn your actions. Deterrence and the protection of the community are important sentencing factors.
27After your arrest you were remanded in custody for four days before being granted Courts Integrated Services Plan (CISP) bail on 5 February 2019.
28Ms Shannon Timmons, CISP Team Leader, in a report dated 4 February 2019, confirms that you successfully completed the four-month episode of CISP support and utilised all the opportunities provided during the program to address your underlying offending behaviour.
29You were candid about issues in relation to alcohol and drug use and made good your expressed desire to achieve abstinence from cannabis, and a willingness to focus on relapse prevention strategies.
30During the CISP bail you completed a comprehensive drug and alcohol assessment with ACSO on 20 February 2019. You had drug and alcohol counselling at IPC Health Sunshine completing four sessions.
31Since February 2019 you have been able to maintain abstinence from cannabis and alcohol. That of itself is a remarkable achievement, particularly given your history of addiction. You commenced using alcohol at age 12. You were introduced to alcohol by your mother. You have a history of binge drinking between the ages of 15 to 18 years. You have also been a chronic and heavy user of cannabis. Your habit commenced at about 11 years of age. You were smoking daily.
32During CISP you were referred for treatment for anxiety and depression. You completed counselling sessions with Ms Yogita Mending, psychologist, between 12 February 2019 to 1 April 2019.
33You also connected with an Aboriginal Men’s Support Group through Victorian Aboriginal Community Services Association (‘VACSAL’) and attended on a weekly basis. You have benefited from the great support and being connected with your community.
34Your progress on the CISP Program was excellent and importantly, you have been able to continue to remain alcohol and drug-free since the time of the commission of the offence. This reflects well on your rehabilitation prospects.
35You are a young Wiradjuri man who is proud of his Aboriginality and cultural connections.
36You have a relationship with Jessica, whom you have known since you were both aged 15. There is a daughter, Lexie, who is now school aged and progressing well. Jessica is currently expecting another child in October 2021. You are currently living separately and apart but you co-parent.
37Jessica confirmed that you are a great support to her and Lexie. You love your daughter and actively parent her. Lexie is very close to you.
38You are one of three siblings born of the relationship between your parents. You have two brothers and a sister, and there are two siblings from your father’s previous relationship – one of whom is deceased.
39I have had regard to the background and history comprehensively set out in the report of Ms Alice Crole, clinical psychologist, dated 25 June 2021.
40Your childhood was significantly disrupted. There were issues of abandonment by your father. Your parents were both heavy drug users. You were exposed to instances of serious domestic violence between your father and your mother. Recently your parents stabbed one another and nearly lost their lives as a result.
41You were given responsibilities for the other children in your family and your home life was difficult. You lived in very poor living conditions.
42Your schooling was disrupted. You grew up in a rental property in Sunshine before the family relocated to Wodonga when you were aged 10. You left school in Year 9 to care for your siblings. Over the years there were multiple interventions by the Department of Health and Human Services.
43I accept that you grew up in an environment of significant disadvantage and social deprivation. You were subjected to physical and emotional abuse by your parents throughout your childhood. You suffered neglect from an early age. You were introduced to alcohol by your mother when you were aged 11 and became a heavy daily user of cannabis from age 13.
44I accept that there is a link between your personal development and drug and alcohol abuse, and the circumstances in which your addictions evolved can be attributed to your history of neglect and exposure to such behaviour at an early age.
45In recent years, there has been an escalation in family violence. There was an occasion in early 2020 where your brother stabbed your father, nearly killing him, and you were called to the scene and had to keep your father alive until paramedics arrived. You do not have any current contact with either parent.
46I accept that you have been diagnosed with post-traumatic stress disorder due to childhood traumas.
47Eventually, you were able to complete Years 10 and 11 at Albury/Wodonga Community College. Since completing school, you have undertaken and completed certificates in warehouse and construction, furniture making, hospitality, business, and community services. You have a strong work ethic and have worked in many roles. You were working towards a job with the Victorian Aboriginal Childcare Agency but could not complete a Working With Children Check and therefore your employment ceased. Most recently, you have been unemployed because of the difficulties coping that you have experienced following your grandfather’s death as well as this pending case.
48You proceeded to have your plea hearing in the Koori Court, and a sentencing conversation was held with Uncle Rod Jackson and Auntie Yvonne Luke, Elders and Respected Persons. You were open with the elders and expressed your sincere remorse. You acknowledged the harm that your actions have caused to the victim.
49The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1]
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
50During the sentencing conversation you frankly acknowledged that drugs, alcohol, and family grief were the direct factors that led towards your offending.
51You demonstrated appropriate remorse, and insight into why it was that you offended, as well as the seriousness and effect of the offending. You expressed a strong intention to remain sober, and a willingness to pursue opportunities for employment and a commitment to not have any further engagement with the criminal justice system.
52I accept that you are genuine and are fully committed to remaining sober, strengthening your connections to community, and increasing positive social connections through maintaining your involvement with the Braybrook Football Club and obtaining full time work.
53Both elders condemned your behaviour and stated that violence and threats of violence are not acceptable behaviours in Aboriginal culture.
54Uncle Rod Jackson urged you to seek out employment through Matchworks and cultural support from Aboriginal organisations such as Dardi Munwurro.
55Aunty Yvonne Luke urged you to continue to seek help and support in the community and to reach out to mentors who can guide you for the future. You have family responsibilities and need to take care of yourself so that you can care for your family.
56I accept that you genuinely participated in the sentencing conversation, and that is a mitigating factor.[2]
[2] 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.
57You have experienced some mental health issues, and there have been multiple suicide attempts, including one after the alleged offence, and another one after your grandfather died and your partner was interstate.
58Ms Crole states, in her opinion, you suffer from Post-Traumatic Stress Disorder with symptoms of depression and anxiety. She states that you would benefit from therapeutic counselling with a psychologist under a mental healthcare plan. She considers that your risk of recidivism is low to moderate, given your self-reported abstinence from cannabis use or excessive alcohol use, and genuine regret and remorse. She noted that you are positively supported by your partner and committed to fatherhood, and you are willing to engage in health treatment.
59Overall, having regard to your expressions of sincere remorse during the sentencing conversation, and the discussions you have held with Ms Crole, I consider that you do have genuine prospects of rehabilitation.
60I have taken into account all the matters put on your behalf in mitigation of penalty. I accept that you offered to plead guilty to the charge the subject of the plea pre-committal, and it is accepted that this is an early plea of guilty. I consider that there is real utility in your plea, and that it does also represent a genuine expression of remorse on your behalf. The plea of guilty is of greater utilitarian benefit during the pandemic, and there must be an appreciable discount in your sentence therefore.[3]
[3] Worboyes v The Queen [2021] VSCA 169
61I accept that your participation in the Koori Court sentencing conversation was genuine and that you did engage appropriately with the elders.
62I further accept that your childhood and adolescence has been marked by considerable trauma and dysfunction. It is hardly remarkable that, given your background, you turned to illicit drug use and heavy alcohol use, and that you suffer Post-Traumatic Stress Disorder of the kind diagnosed by Ms Crole.
63I accept that the impact of the depravation, abuse and other social disadvantage that occurred during your formative years was profound and that has not diminished with the passage of time and repeat offending. I have applied the principles of Bugmy.[4]
[4] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
64The High Court recognised that “the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of sentence in every case.”[5]
[5] Ibid, paragraph 42
65I have reduced your moral culpability accordingly. Further, there is a need to moderate both general and specific deterrence.
66I note that, following your arrest, you were detained for a period of four days in police custody before being released on CISP bail.
67There has been a long delay in your matter proceeding. This delay is not attributable to any acts on your behalf. An offer to settle on the basis of the plea was made at committal but was not accepted. Thereafter lengthy delays took place due to lack of availability of Magistrates to hear the committal and the pandemic.
68Mr Plummer, the prosecutor, accepted that for sentencing purposes this is an early plea of guilty and therefore you are entitled to a discount on sentence.
69I have taken into consideration the significant progress and achievements that you have made in addressing your offending behaviours whilst you have been on bail in the community over a lengthy period since 5 February 2019.
70Through your conduct you have demonstrated a real commitment to addressing your underlying offending behaviours. You have acted appropriately by remaining abstinent from drugs and alcohol, and there is no further offending.
71I accept that you do have reasonable prospects of rehabilitation.
72I have had regard to the sentence imposed in respect to your brother, and I note, in all the circumstances, that there are some distinguishing features, in that he was a young offender who had less serious prior criminal history. Different sentencing principles apply.
73Whilst there is some basis for justifying a disparity in sentence, your conduct and genuine efforts at reform whilst having this matter hanging over your head for more than two years and five months, justifies the imposition of a Community Corrections Order.
74Ms Burnnard sought a Community Correction Order (CCO) on your behalf. Mr Plummer conceded such a disposition was open given the mitigatory factors that have been highlighted.
75Following adjournment, you have been assessed as being suitable for a CCO.
76As was made clear in the guideline judgment of Boulton,[6] in an appropriate case, a Community Correction Order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.
[6] Boulton v The Queen (2014) 46 VR 308
77A Community Correction Order can be fashioned to address your circumstances, the causes of offending and minimise the risk of reoffending by promoting your rehabilitation. Although, as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, the Court of Appeal has said a Community Correction Order may remain open even in cases of very serious offending.[7]
[7] Ibid, 338 [131]
78I consider that to return you to jail at this time would likely be harmful to your mental health and would be very disruptive and could potentially undo all the hard work that you have put into your reformation.
79I accept the recommendations made by Olga Perifanos in her Community Correction Order assessment outcome report dated 21 July 2021.
80I have also had regard to the report prepared by Alice Fletcher, Nurse Practitioner, Mental Health Advice and Response Service Assessment dated 13 July 2021.
81Ms Fletcher recommends that you would benefit from a mental health condition being added to your CCO. She considers that you would benefit from engaging with a psychologist to address your past trauma, grief issues and mental health needs. You have expressed a willingness to engage in such services.
82In all the circumstances, I consider that a Community Correction Order in the terms proposed and discussed with you is just punishment and provides for your rehabilitation and for the safety and protection of the community.
83You have given your verbal consent to the making of such an order. You have had explained and understand the consequences of a contravention of such an order.
84The formal court orders are, in relation to the one charge of attempted armed robbery, you will be convicted and placed on a Community Correction Order for a period of 18 months.
85In addition to the core conditions of the order you will be subject to supervision; you must undertake 150 hours of unpaid community work; participate in assessment and treatment (including testing) for drug and alcohol; participate in treatment to assess rehabilitation and mental health issues and participate in programs to reduce the risk of re-offending as directed.
86Pursuant to s 48CA of the Sentencing Act 1991 any hours undertaken as part of the treatment and rehabilitation conditions can be credited as hours of unpaid community work.
87You have been instructed to telephone Sunshine Justice Service Centre within two clear working days of being sentenced.
88I make the following declaration pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a term of imprisonment of 12 months and to be combined with a Community Correction Order.
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