Director of Public Prosecutions v Payne, Samuel
[2013] VCC 653
•17 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-0032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL PAYNE |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 May 2013 | |
CASE MAY BE CITED AS: | DPP v Payne, Samuel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 653 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Luke Exell | |
| For the Accused | Chris McLennan |
HER HONOUR:
1 Samuel Payne, you have pleaded guilty to one count of robbery contrary to s.75 of the Crimes Act and to one count of armed robbery contrary to s.75A(1) of the Crimes Act. The maximum penalty for robbery is 15 years’ imprisonment. The maximum penalty for armed robbery is 25 years’ imprisonment.
2 You were 18 years old at the time of the offences, which were committed on 8 November 2012. Your co-offender, Lachlan Divers was aged 17 at the time of the offences and is expected to plead guilty on 2 July 2013 in the Children’s Court to offences flowing from these events. At the same time, he will be dealt with in relation to other matters.
3 Mr Exell, for the prosecution, read out a summary of the case that is brought against you [Exhibit 2]. You have admitted the accuracy of that statement and I sentence you on the facts as set out in that document.
Circumstances of the offences
4 The victims are brothers, Brendon and Matthew O’Flaherty. At the time of the offences Brendon was 34 years old and Matthew was 23 years old. They were walking down Russell street in Essendon at around 11 pm. You and your co-offender asked them where they were going and then followed them. You continued to follow them and they walked backwards along Buckley Street so that they could face you. Your co-offender pretended he was carrying a weapon and threatened the victims. He pushed Brendon O’Flaherty in the chest and demanded money. Matthew O’Flaherty gave your co-offender a $20 note from his wallet and told you to leave them alone. You said to your co-offender that you wanted some money as well. Matthew O’Flaherty then gave you $6.00 in coins. There was a scuffle after which Brendan O’Flaherty pushed your co-offender over a small fence. The victims retreated. This is the subject of Charge 1, robbery.
5 You and your co-offender followed the victims to their residence and continued to ask for money. They went backwards up some stairs towards their unit. You removed a fire extinguisher from the wall and brandished it in front of the victims, threatening to hit the victims with it. You demanded money from them. Brendon O’Flaherty took a $50 note from his wallet and told you to leave. Your co-offender left. Mr O’Flaherty told you he would give you the money if you put the fire extinguisher down. You did so. He handed you the money and you left the scene. This is the subject of Charge 2, armed robbery.
6 You and your co-offender were arrested by police shortly after the above incidents. You had changed clothes but were carrying a backpack containing the clothes worn during the offending. You were also carrying the $50 note taken from Brendon O’Flaherty.
7 You were interviewed early in the morning on 9 November 2012 and made full admissions. You told police you were homeless at the time of the offences, did not have any money, and asked the victims for money because you were desperate and had not eaten since Friday. You said that you had nothing against the victims and had just approached them at random.
8 I note that their in their victim impact statements [Exhibit 1] the victims indicate that they did not suffer any injuries or property damage as a result of the offences, and simply list the money taken from them as financial loss suffered as a result of the crime.
9 You were taken into custody on 8 November 2012 and released on 9 November 2012 and are therefore entitled to have two days of pre-sentence detention taken into account. You pleaded guilty at a further committal mention on 21 February 2013.
10 The prosecution makes application for an order pursuant to s464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample which I understand
11 you do not oppose.
Sentencing hearing
12 Mr McLennan made a plea in mitigation on your behalf. He tendered a number of documents.
13 First, there was a brief chronology [Exhibit A] concerning your background and personal circumstances. Your parents separated the year after you were born. Your mother died in 1997 after brain surgery. You then lived with your father and step-mother in Queensland. A half-brother was born in 2000 with major health problems requiring surgery. Your family returned to Melbourne in 2001. In 2003 contact with your mother’s family ceased. In 2011 your maternal grandmother died in Stawell and you were unable to attend her funeral due to flooded roads.
14 You left home in May 2011, living with your then girlfriend’s mother and various other family members. You made contact with your family after 1 month, and moved back home in September 2012 temporarily after 16 months away but you were asked to leave again in November 2012 due to family conflict. You then committed the offences which are the subject of these proceedings.
15 In February 2013 you moved back home and in March you commenced work part time at KFC in Tullamarine. You obtained a Learners Permit, started seeing a psychologist, received drug and alcohol counselling, and started attending church. In April this year your step-mother was diagnosed with leukaemia.
16 According to the undated letter from Michael Brancatisano [Exhibit B], youth leader in the Inner Life church, you have been attending a young adult youth group since December 2012 and have behaved appropriately at all times.
17 Adriana Pugliese, social worker with the 20th Man Youth Support Service, wrote on 1 May 2013 [Exhibit E] that you were a client of the services between August and December 2011, that you engaged exceptionally well with the Service, were living away from home, studying Horticulture at TAFE and trying to cut down your use of cannabis. She said that you are interested in art and participated in a number of art programs. In 2012 you had volunteered to support a local group of artists. She noted that she was surprised to learn of your offending and described it as “highly out of character”. She contacted you to offer her support, which you accepted, and she helped you with employment and additional services. She stated that you were proactive in trying to address the issues that had led to your offending behaviour. She concluded:
"Sam has painstakingly analysed his behaviour, its impact on the victims and those around him. It goes without saying that he deeply regrets his actions. I have no doubt that the qualities possessed by Sam, particularly his level of self-motivation and perseverance, together with the right support, will greatly assist him as he makes amends for his actions and moves forward from this experience."
18 Michele Albrecht, youth outreach worker with the Youth Support and Advocacy Service, wrote on 9 May 2013 [Exhibit F] that you were referred to the service by the Melbourne Magistrates Court in November 2012 for assistance in dealing with substance abuse and offending. She noted that you maintained weekly appointments and have been open about your use of cannabis from the age of 15, amphetamines from the age of 17, binging on ice and speed for days at a time, drinking alcohol regularly. You told her your lifestyle was chaotic and you had limited memory of the period. She reported that you have ceased using illicit substances and have used alcohol but have not been intoxicated. She reported that over the past 3 months you have made significant changes to your lifestyle, returning to live with your family, securing employment, becoming an active member in a Christian youth church group which you attend twice per week. Your mood and general appearance have improved dramatically, you have been actively engaging in treatment and have been able to avoid relapse of substance abuse. She noted that you have continually expressed remorse about your offences and their impact on your victims and on your family. You will continue to receive YSAS support if released into the community.
19 Michael Bilyk, psychologist, provided a report dated 6 May 2013 [Exhibit G]. He noted that your family was religious and church going but that you drifted away from the church during your adolescence and that you had left home at 15 due to drug taking and a negative peer group. You were expelled from school during Year 11 due to possession of alcohol. You self-harmed at the age of 16 after conflicts with your associates and then girlfriend. Between the ages of 16 and 17 you lived with your girlfriend. When this relationship broke down your substance abuse increased and there was a lack of structure in your life. Mr Bilyk noted that you attributed the offending to your substance abuse and negative peer group. He found you insightful as to the cause of your offending, and ashamed and remorseful. He noted that you had voluntarily entered treatment through a mental health plan with your GP, Dr Tran, in February this year and had received Cognitive Behavioural Therapy to relieve symptoms of depression and to remain drug and alcohol free. He noted that you have adopted what he termed pro-social lifestyle changes and fully cooperated with Youth Justice supervised bail.
20 Mr Bilyk administered a number of inventories and found that you suffer from no mental or cognitive disorder. He reported that your test results indicated that you present a low risk of re-offending generally. He concluded that you have done well when you make appropriate lifestyle choices, are monitored in the community and seek relevant intervention. He considered that your prospects for rehabilitation are sound, particularly as you have no prior criminal history, no major mental illness, none of the typical antecedents to violent behaviour and are currently employed, living at home, and getting professional assistance. He felt that you would be suited to a community-based disposition with monitoring, supervision and drug screening.
21 Mr Stephen Riordan, Senior Court Advice Officer of the Youth Justice Unit, at the Melbourne Magistrates Court, reported on 10 May 2013 [Exhibit H] that you engaged in binge drinking and risk taking behaviours at the age of 15 and in 2011 were abusing amphetamines, going on benders until you ran out of drugs or money. You told him that on the evening of the offences you had consumed a cocktail of alcohol, Serepax, Xanax and Valium and were significantly affected. Mr Riordan had referred you to Ms Albrecht and Mr Bilyk. He reported that you have been living at home since February and your relationship with your parents has improved and you love spending time with your little brother. He reported that you had ceased taking illicit substances or drinking alcohol and have balanced your work as a cook at KFC with your appointments with Youth Justice, Ms Albrecht and Mr Bilyk. He reported that you are a very changed young man with a very good prognosis. You have not missed any appointments, have stopped using drugs and alcohol, are regularly attending church, are living at home and getting on much better with your parents, working part-time, and do not have an entrenched antisocial belief system. In addition, he said you have demonstrated appropriate remorse during your sessions.
Prior offences
22 You have no prior criminal matters.
Mitigatory factors
23 You made full admissions when arrested by police, and pleaded guilty at an early opportunity. You have written a letter of apology to the victims which states that you were under the influence of alcohol and prescription medication at the time of the offences and regret your actions, that you have changed your life since that time, rejoining the church, and have left drugs and alcohol behind, reconnected with family and friends and learned to deal with pain and anger in a way that does not affect the community. You have found regular part-time employment and have indicated a desire to work in social work.
24 The prosecution noted a number of aggravating factors: that the offending occurred when you were in company with your co-offender; matters escalated during a single course of conduct in which you failed to desist but continued, after the robbery, to pursue the victims, and then committed the armed robbery. Your action in using the fire extinguisher, although spontaneous, caused fear to your victims. However, given your age, lack of prior convictions and sound prospects for rehabilitation, the prosecution did not oppose the imposition of a Community Corrections Order with a work component and treatment conditions. However, the prosecution submitted that, given the seriousness of the offences, a conviction should be recorded.
25 I note that you were just 18 at the time of the offending, that you stand to be sentenced by this court as a young offender and for this reason that rehabilitation is a primary sentencing consideration and a more important consideration than general deterrence for a number of reasons: you have no prior convictions; you made admissions to police and pleaded guilty at an early stage; you have repeatedly demonstrated remorse for your offending; this is your first offence; the offences were committed spontaneously without planning against a recent background of drug taking, alcohol abuse and homelessness; the victims suffered no physical injury and only a small amount of cash was taken; that you have engaged with counselling, abstained from using drugs, returned to live at home, found employment and re-engaged with your church and your family and friends. I take into account that you have fully appreciated the effect of your offending.
26 I have decided to impose an aggregate sentence for the two charges. Section 9(1) of the Sentencing Act enables me to do so where the two offences form part of a series of offences of the same or similar charge.
27 On each of the charges I find the charges proven and I place you on an aggregate Community Corrections Order to last for 12 months from today. I impose the following conditions:
(1) That you perform 100 hrs of unpaid community work to be completed within the period of the order; and
(2) That you be subject to supervision while on the order; and
(3) That you attend for assessment and treatment for both drug and alcohol related programs; and
(4) That you undergo mental health treatment where required.
28
In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are that you must not commit any other offences during the period of the order being in force, that is 12 months from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Broadmeadows within two clear working days of today. Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections office of any change of address of where you live or where you work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers. Do you understand the conditions I have imposed and the general terms
that apply?
29 PRISONER: Yes.
30 HER HONOUR: I must also tell you that if you do not comply with any of the terms and the conditions imposed you risk being brought back in front of me and I would have to consider whether to re-sentence you on all of the charges. Do you understand?
31 PRISONER: Yes.
32 HER HONOUR: In imposing this sentence I have exercised my discretion not to record a conviction. In exercising this discretion I have had regard to the circumstances of the case, in particular your age, your good character and the lack of any past criminal behaviour. I have also considered the fact that you are young and the recording of a criminal conviction may impact upon your future employment prospects.
33 I declare for the purposes of s 6AAA of the Sentencing Act that, but for your plea of guilty and with the approval of the Juvenile Justice Central Courts Unit, I would have convicted and sentenced you to be detained in a Youth Justice Centre for a period of 6 months.
34 In addition to the Community Corrections Order, I order that pursuant to s 464ZF(2) of the Crimes Act you undergo a forensic procedure for the taking of a sample by scraping the inside of the mouth. I warn you, as I must, that if you resist the taking of that sample, police will be authorised to use reasonable force to take it from you. In order to have this sample taken you must report to the Officer in Charge of the Moonee Ponds Police Station during the period of 4 weeks commencing 28 days after today. Mr McLennan will explain this to you if necessary.
35 Are there any further orders that need to be made?
36 COUNSEL: No, Your Honour.
37 HER HONOUR: Very well, thank you.
38 MR EXELL: Your Honour, just one matter in relation to the letter of apology. Could we have the original returned to the OPP and a copy left on the court file? Only just that they may wish to send that on to the victims, Your Honour.
39 HER HONOUR: Thank you, I will make that - thank you very much. We will adjourn, thank you.
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