Director of Public Prosecutions v Payne
[2019] VCC 1820
•6 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01525
Indictment No: J12159135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLAN-RAY PAYNE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Mildura | |
DATE OF PLEA HEARING: | 29 October 2019 | |
DATE OF SENTENCE: | 6 November 2019 | |
CASE MAY BE CITED AS: | DPP v Payne | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1820 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Criminal law – sentencing – armed robbery and handle stolen goods – young offender – genuine participation in Koori Court sentencing conversation – serious offending – term of imprisonment imposed.
Legislation Cited: Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | John Cain, | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P De Lorenzo | MIR Lawyers |
HER HONOUR:
1. Allan-Ray Payne, you have pleaded guilty before me to one charge of handle stolen goods and two charges of armed robbery. The charges are all serious and that is reflected in the maximum penalties that are prescribed by law and they are 25 years imprisonment for armed robbery and 15 years imprisonment for handle stolen goods.
2. In addition, you admitted your prior criminal history. That history spans a period from 3 February 2015 until 20 April 2017 and relates to offending and various attendances at courts in New South Wales. On 20 April 2017, at the local court, you were imprisoned for a period of 3 months, commencing 14 February 2017 and concluding 13 May 2017, in respect to a charge of being carried in a conveyance without consent of the owner. Your other prior offending relates to matters that were dealt with in the Children's Courts of Broken Hill and Wentworth and they relate to a variety of charges for which you have received dispositions ranging from dismissals with caution, to bonds, probation and fines. You have spent some time in the Juvenile Justice System within New South Wales.
3. You were arrested in respect to this offending on 14 August 2018 and have remained in custody in an adult prison since. This is the first occasion where you have been held in an adult custodial setting in the State of Victoria.
4. I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing. There was no objection taken to that opening, and those facts were admitted.
5. You were 19 at the time of the offending and you are now 21.
6. The offending occurred in company with a child co-offender, Brodie Desmond[1] who is now aged 19. His charges have not been dealt with because he failed to appear at a committal hearing listed on 1 August 2019 and a warrant for his arrest has been issued.
[1] This is a pseudonym name.
7. On 11 August 2018, a white Mitsubishi truck was stolen from a property at Koomeela in New South Wales.
8. Between 13th and 14 August 2018, you and Brodie Desmond, travelled from New South Wales to Irymple, Victoria, in the stolen truck and at the time you were both aware that it had been stolen (Charge 1, handle stolen goods).
9. At approximately 2.00am on the 14 August 2018, the vehicle was parked in the carpark of Irymple Secondary College and you both proceeded on foot to the OTR service station in Fifteenth Street, Irymple.
10. The front glass sliding doors of the service station were locked, but in response to your knock they were opened by the staff attendant, Judi Whitchurch.
11. At the time, you were armed with a large kitchen knife, wearing a hood, but your face was visible on CCTV footage. You held the glass sliding doors open, allowing your co-offender to enter the store. Desmond was armed with a long arm rifle. He approached the front counter quickly and pointed the rifle at Ms Whitchurch. He demanded that she empty the till, and in response to his threat Ms Whitchurch handed over $300 in cash (Charge 2, armed robbery).
12. You then alerted Desmond to the presence of another customer at the service station, who was Nathan Douglas. Desmond then approached him and pointed the rifle at him and demanded his car keys. He was terrified that he would be shot and immediately dropped to his knees, and slid his car keys and wallet over to Desmond. You both then left the store and drove off in Douglas’s car, a Holden Astra hatchback that was parked outside, that constitutes (Charge 3, armed robbery).
13. Approximately 1 pm later that day, the car was located in scrubland opposite the Dareton Mission, and had been destroyed by fire.
14. You were arrested in New South Wales and later transferred to Victoria where you were interviewed on 15 August 2018, when you made a no-comment record of interview at the Mildura Police Station.
15. This matter proceeded by way of a Sentencing Conversation in the Koori Court Division. At the plea hearing, Aunty Raelene Drummond and Uncle Peter Peterson, both Barkindji people were present and participated in the sentencing conversation as Elders and Respective Persons.
16. Also present was one of the victims of your offending, namely, Judi Whitchurch. Ms Whitchurch set out in graphic detail in her victim impact statement the effects that your offending has had upon her. She no longer trusts anyone and has lost her confidence and independence. Your offending has changed her whole life. She has gone from being a happy person, to one who feels depressed, anxious and unsafe at all times. She described the moment when the gun was pointed into her face as being one of the most terrifying moments in her life. She continually ruminates about that event and thinks about how different things could have been. Tragically, she no longer feels safe at work and has struggled returning to work at the service station, because of her anxieties and fears. She is constantly on edge and has flashbacks, and feels scared about any unknown people when they enter the store. She has stopped socialising and feels that she has completely lost control of her life. She has been having counselling but resents having to open up and speak to psychologists and doctors about her situation. It is obvious that the impact has been profound. She is undertaking counselling, as well as treatment for her conditions.
17. There was no Victim Impact Statement filed on behalf of the other person who was present at the time of your offending, namely, Nathan Douglas, however, commonsense dictates that it would have been difficult for him and terrifying for him, as is stated in the opening, he was terrified that he would be shot and immediately dropped to his knees and complied with the demand that he give his wallet and keys. The destruction of his vehicle by fire would have further exacerbated his response to these crimes.
18. Mr Payne, the offending is serious, involving, as it does, two offenders both of whom were armed, one with a rifle and one with a knife respectively. It occurred in the early hours of the morning, where it appeared that Ms Whitchurch was working alone, and in an isolated store. The impact of the offending has been great, as has been earlier described. On behalf of the community, I must condemn your behaviour and denounce your offending. Deterrence is of particular significance in formulating the appropriate sentence.
19. I have taken into consideration all the matters put on your behalf in mitigation.
20. Your matter was resolved at committal hearing on 1 August 2019 and proceeded by way of a straight hand-up brief. Therefore no witnesses were required to give evidence. And that is an important consideration given the trauma that has been suffered by these victims. I accept that your plea of guilty was entered at an early stage in the proceeding and is of significant utility. It represents an acceptance on your behalf of responsibility for your actions and is indicative of genuine remorse.
21. Further, you spared the State the unnecessary expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
22. You were a young offender at the time of the offending and you are now 21. I have had regard to your lack of maturity and poor judgement.
23. A psychological assessment prepared by Dr Susette Sowden, was provided to the court dated 25 October 2019. She was able to interview you via a video link on the previous day.
24. In her report, she noted your family history and background. You were brought up in Dareton, New South Wales. Your aunty took over responsibility for your care because your mother suffered a stroke. Tragically, your mother died when you were aged 15 or 16. You were very close to your grandparents, Ray and Lottie Lawson, both well regarded and highly respected Barkindji elders. Your nanna died when you were 13 or 14. And your pop died when you were 17 or 18.
25. At age 19, your 20-month-old nephew died from medical illness. Your father is still alive, living in Dareton with a new partner. You have a girlfriend, Samara, with whom you have a 16-month-old daughter. Samara is presently living with your father and stepmother. She continues to remain supportive of you and has been visiting you regularly every six weeks whilst you have been in custody. It has been difficult for her following your arrest, because your daughter was only aged six weeks when you were jailed for your involvement in these armed robberies.
26. In the context of you acting out after your mother and nanna died, you were expelled from school when you hit a teacher and you did not complete Year 10.
27. You have never been employed.
28. You have a long-term history of drug use, using methamphetamines from an early age.
29. In the past, you have been held in Wagga Wagga at the Riverina Juvenile Justice Centre and primarily those sentences have related to thefts of motor vehicles. You are in good health but you have never received any treatment in respect to your drug condition or mental health condition. You told Dr Sowden that you had been suicidal following your mother’s death, but apart from that you had never had any mental health problems.
30. Dr Sowden confirmed that you do have methamphetamine use disorder and that you may also have a mild anti-social personality disorder. She says your prognosis is considered to be positive in the event upon your release you are able to participate in a drug rehabilitation program, that you have stable residence and employment. She recommends that you participate in psychological counselling during any period of parole and that you be regularly screened for the use of methamphetamines and in the event of re-use that you be required to participate in further drug rehabilitation.
31. I have regard to your difficult family history and background and I accept that your background is one that can be characterised as being one where you have experienced significant and profound trauma and deprivation and I have applied the principles enunciated in the case of Bugmy[2]. Those affects do not diminish with the passage of time or repeated offending and I have given full weight to those principles in formulating the appropriate sentence.
[2]Bugmy v R (2013) 302 ALR 112.
32. I have had regard to the Bugmy principles in terms of assessing your moral culpability and also the need to impose general and specific deterrence and I have moderated that, having regard to your history. You are a relatively young offender and therefore your rehabilitation is an important factor in sentencing. I have applied the Mills[3] principles.
[3] [1991] 4VR 235, 241.
33. Your explanation for this offending was that you were with your co-accused, Desmond and you had been affected badly by ingesting methamphetamines. Whilst providing a context to your offending it does not in any way excuse your offending and there is still a need to emphasise deterrence and also the protection of the community in your sentence.
34. In the course of a sentencing conversation, you took the opportunity to apologise directly to Ms Whitchurch and acknowledged that you would equally have caused harm to the other victim, Nathan Douglas, and you also apologised for your actions towards him. You are now sorry for what you did and acknowledge freely that the victims would have been traumatised by your actions.
35. For the future, you have indicated that you want to be a better role model for your daughter and a better partner for your partner. There is a possibility that one of your uncles may be able to guide you to provide you with employment in the future.
36. In custody, you have been using your time productively. You have successful completed the 12-hour drug and alcohol treatment program offered through Caraniche. You have had negative drug screens and those screens relate to the period from 31 March 2019 to 15 October 2019. It is apparent that this is the first occasion where you have had treatment in respect to your drug addiction and you have completed all scheduled sessions. You indicated a willingness to participate in a drug rehabilitation program and you want to get your life back on track. You recognised this offending has been a real wake-up call.
37. In anticipation of the plea hearing, enquiries were made, on your behalf and you were considered to be eligible to attend Wiimpatja Healing Centre at Warrakoo Station. This is a 12 week residential program for Aboriginal offenders in respect to drug addiction.
38. Having regard to the seriousness of the offending and the matters raised in a plea, it is not considered that your release on bail to attend this program is appropriate. Given the gravity of the offending, I have concluded that the offending is far too serious and warrants the imposition of a gaol term to be immediately served.
39. I accept that the sentencing conversation was a challenging one. Aunty Raelene urged you to take full responsibility for your actions and take positive steps to get your life back on track. She was encouraged by the steps that you had taken to date but urged you to consider acquiring employment skills and encouraged you to make better decisions for the future.
40. She emphasised your conduct was not in keeping with the standards that your Nan and Pop would have ascribed to. She said that you know right from wrong and that you should take the opportunities now being provided to you to make the most of your life for the future. She urged you to be proud of your background and encouraged you to seek help from elders in your community in Dareton.
41. Uncle Peter Peterson stressed how your decision to participate in these armed robberies were a wrong choice, it was stupid, and could have resulted in disastrous consequences had anyone been seriously injured or killed. He urged you to show respect for yourself and your community, and to give your family first priority.
42. Both of the elders urged you to give consideration to playing a more positive role in your daughter’s life and to reconnect with your Aboriginal culture. Both of them stressed that violence was not a part of Aboriginal culture and that there are many Barkindji and Latjilatji elders from whom you could take the opportunity to learn, so as to give you hope for the future.
43. You come from a very proud Aboriginal family, your grandfather, Ray, was a senior Barkindji man, who was highly regarded and well respected, who was active and strong in protecting and respecting cultural heritage. You were urged to draw from that for the future so that you have a better direction in your life.
44. Your partner, Samara, spoke about the difficulties she had experienced whilst you were in gaol. She is very isolated living here in Mildura unsupported. She wants you home to be her partner and a real father to your daughter. She said that she has observed a change in you since you have stopped taking drugs and you have repeatedly saying to her that you want to be at home, to be a family man, and to be with her and your daughter in the future. Whilst accepting that you have been exposed to complex traumas in your life, having regard to your known circumstances and all the other material that was before the court through the sentencing conversation, I have come to the conclusion that you have not discharged the burden of proof, insofar as substantial and compelling circumstances are concerned.
45. The armed robbery charges are both category 2 offences and as such a court must make an order of imprisonment unless one of the exemptions set out in the section applies.
46. Your counsel Mr De Lorenzo did not seek to rely upon any mental impairment. However, he sought to rely on s.5(2H)(e) and submitted that the combination of factors that he highlighted in his sentencing submissions, do demonstrate substantial and compelling circumstances.
47. In formulating just punishment, I have had regard to the objective seriousness of the offending and the matters put in mitigation. I accept that your participation in the sentencing conversation was genuine, that you showed shame and genuine remorse for your behaviour and I have taken that into account in your favour as a mitigating factor.
48. This is a very serious example of armed robbery, committed in company. The offending was very alarming and must be condemned. With strong family support that you have from your partner, as well as your father and stepmother and other community members, I consider that your prospects for rehabilitation for the future are good. And those prospects have been further enhanced through you now being drug free.
49. The challenge for you in the future upon your eventual release is to remain drug free. The fact that you have been able to remain drug free in a controlled environment is significant and it is particularly significant for a young man who has had such a long term addiction to drugs from his early teenage years. You are now in a position to better pursue the path to rehabilitation, but you will need to maintain vigilance and also commitment on your eventual release. I recommend to the authorities that every effort be made to provide you with structure and support upon your release, that there be an emphasis on counselling to address drug abuse and also complex trauma.
50. This is your first time in an adult gaol setting and you are relatively isolated from your community, being housed in prison, in metropolitan Melbourne. You have not found your time in prison easy, but nonetheless you have made the most of the opportunities that have been offered.
51. You are a young Aboriginal man, who does have real potential for the future and I urge you to draw on your strong cultural connections to provide you with focus for the future and to take up the opportunity given to you to seek out elders in the community who can provide you with positive support.
52. Ultimately, as was discussed in the sentencing conversation, it is now a matter for you to accept responsibility for your actions, for you to continue to act more maturely and responsibly and for you to think about the consequences of your actions. Otherwise the alternative will be that you will be trapped in a cycle of further offending and gaol, with tragic consequences for your young partner and your daughter.
53. In formulating the appropriate sentence I must impose just punishment and I have had regard to the sentencing principles applicable for young offenders and also the mitigating factors that I have highlighted.
54.
I make the following formal Court orders and I do ask that you please stand now,
Mr Payne. In relation to the charge of handling stolen goods, you will be convicted and sentenced to 12 months’ imprisonment, that's Charge 1. Charge 2, armed robbery, you will be convicted and sentenced to two years and six months imprisonment. Charge 3, convicted and sentenced to two years and six months imprisonment.
55. I make the following orders for cumulation. Three months of the sentences imposed on Charge 1 and 3 will be cumulative upon each other and cumulative upon Charge 3, making a total effective sentence of three 3 years imprisonment and I fix a non-parole period of 15 months.
56. I have fixed a non-parole period shorter than usual to reflect your efforts towards rehabilitation to date and to reflect your prospects for the future.
57. I make the following declaration of pre-sentence detention. I declare that you have served 448 days pre-sentence and direct that that be entered into the records of the Court.
58. I make the forfeiture order sought.
59. Finally, I make declaration pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of five years to serve three years. And that concludes my sentencing remarks.
60. HER HONOUR: All right so thank you, Mr Payne can be removed and taken back into custody. We can adjourn.
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