Director of Public Prosecutions v Pearson, Ross Wesley

[2013] VCC 350

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LA TROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROSS WESLEY PEARSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	La Trobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 March 2013
CASE MAY BE CITED AS:	DPP v Pearson, Ross Wesley
MEDIUM NEUTRAL CITATION:	[2013] VCC 350

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Lynch	Office of Public Prosecutions
For the Accused	Mr A. Hands

HIS HONOUR:

1       Ross Wesley Pearson, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, one charge or recklessly causing injury, one charge of attempting to obtain property by deception, one charge of possession of a drug of dependence and one uplifted charge of possessing a prohibited or controlled weapon.  Those crimes carry maximum penalties of 25 years, 10 years, five years, five years and a monetary penalty, and for the summary matter, a maximum of one year.

2       You pleaded guilty to a settled presentment and must get the benefit of that.  You made admissions to police and acknowledged the stupidity of your actions.  In those circumstances I accept that there is an appropriate degree of remorse.  You must also get the utilitarian benefit of that plea of guilty. 

3       You are now 25 years of age and this has been and will be your first gaol sentence.  You do have prior convictions and finding of guilt, mainly from the Children's Court.  They do involve dishonesty and weapons.  The dishonesty matters that will concern are one attempted robbery and one robbery, even though one of them is now quite old.

4       

The summary of the offending has been tendered and I do not need to go to it in great detail.  You were 24 years old at the time of the offending and the victim, Mr McLeod was 75 years old and was living in Maffra.  On 7 May 2012, you were driven from Sale to his house by your co-accused, Donovan Finn.  Finn has been dealt with and I will refer to that shortly.  Between 6.30 and

7 am

, you knocked on his door.  He opened the internal door, leaving the security door locked.  He did not know you.  You were wearing a long sleeved top.  You told him that your father had sent you to get some money that was owed.  You said that you were cold and asked if you could come in.  He unlocked the security door and admitted you.  He went in and sat down on a chair in the lounge room and you stood just inside the front door.  Some discussion then took place and you asked him for money and he gave you some.  There is some lack of particularity about how much money, I do not think it matters a great deal in the end.  You took the money.  You then found a cheque book and you directed him to write out cheques for you. 

5       After the cheques were written out, you told him to stand up.  As he stood up, he grabbed a half full cup of tea he had been drinking and threw it at you.  The cup struck you in the face.  You then pulled a metal bar about two feet long and three quarters of an inch thick from your sleeve.  You struck the complainant with the bar across his stomach.  The blow was described by him as very hard.  As a result of that, he suffered extensive bruising over the left upper quadrant of his abdomen, and I have seen the photos of that.  Whilst at 75 he may be more subject to bruising and on warfarin, or whatever, I would not know, but it was a pretty gutless act, with all due respect, Mr Pearson.

6       In any event, you then said that you were going.  As you left, the victim noticed that you had a knife, but that is not the basis of the aggravated burglary charge.  During that the complainant could hear you – a male voice on the phone that was talking to you and it seems clear that that was Finn.  Police were called.  You went into the Sale central business district and tried to cash a cheque.  It was refused and staff tried to get you to wait for the police but you left five minutes before they got there.  Later that day police interviewed you, having found you with a foil containing a small amount of cannabis and a 20 centimetre long knife, which gives rise to the controlled weapon charge. 

7       I have before me a victim impact statement which said that he suffered pain and bruising for at least two months and very simply said, "I don't sleep as well as I used to".  The crimes are serious, aggravated burglary is serious enough in itself, but when added onto that is – and I am well aware it is a recklessly cause injury – is to belt a defenceless old man with an iron bar.  I regard it as very serious.  The situation calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  A custodial sentence of significant proportions is inevitable.  Your co-accused, Mr Finn, who was, as I understand it, 39 with a very, very significant criminal history, received a sentence of nine months straight.  He, however, was sentenced for burglary simpliciter and theft.  Obviously parity is a significant matter in this particular situation. 

8       Tendered on your behalf were two reports from Dr Lester Walton, which described your background.  You are only 25 and it is clear from the reports of Dr Walton that you have little memory really of your younger years.  You were born in Maffra and raised in Heyfield.  You would appear to have suffered abuse from a family friend during that period of time.  On the history given to the various psychiatrists and psychologists which I accept that you have been seeing since you were very young, you appear to have commenced using marijuana at about 13, heroin at about 14 and amphetamine to some degree at that age, but certainly later on. 

9       You have initially been diagnosed with schizophrenia . Dr Walton is of the view that what really has been, there has been a major depressive condition.  You have been medicated frequently.  He also takes the view that the hallucinations that you have had over the years are more likely to be recurring episodes of drug-induced psychosis rather than schizophrenia.  You lost a daughter about four years ago.  Dr Walton opines that that has increased your depression and caused you even greater difficulty.  There is mention in the reports of self-harm.  There is mention in the reports that you are essentially a fragile person. 

10      You have not wasted your time in gaol and have been endeavouring to get into course and you wish to be involved in metalwork.  You clearly have, and have had for a long time I suspect, good family support.  You are one of four children and the only one to offend.  You have now been on remand for 323 days.  You have been kept in Melbourne and it has been very difficult for your family to come down to visit you.  Your father suffers from multiple sclerosis and I accept that it has been harder for you with a lack of visits and that any future period of imprisonment will be accompanied by the same difficulties.  I accept that your major depression and your fragility have made gaol harder for you and that applies to any future gaol that you must serve.

11      In so far as Verdins is concerned, I do not see that it really applies to any matters of moral culpability, but I suppose in one sense general and specific deterrence should be modified to a very limited degree.  The prospects of you rehabilitating should be good.  Your criminal history is not as bad as one might anticipate when one sees offending such as this and the risk of your re-offending clearly is going to involve you not using drugs.  You have an entrenched drug problem.  You say that you were affected by drugs on this particular occasion and, bearing in mind the time of day that it occurred, that may well have been so.  I am told from the Bar table that you were afraid of Mr Finn and again I accept that that may be so.  It certainly does not go to duress and you were the one that hit him.  Mr Finn was not there when that happened, but I do take that into account in a general way. 

12      On the material before me, the Crown range was one of two and a half to four years as a head sentence and I think that is an appropriate range.  In your particular situation, bearing in mind the family support, that gaol will be harder for you, that it si your first gaol sentence, that you are still a relatively young man and that your prospects of rehabilitation are far from extinguished, I accept your counsel's submission that an opportunity for parole should be given significantly earlier than might otherwise be the case.  That being said, as I have indicated, it is an ugly piece of offending and must attract a proper custodial sentence.

13      Doing the best I can, on Charge 1, you are sentenced to be in prison for a period of 30 months; on Charge 2, six months; on Charge 3, 15 months; on Charge 4, three months; on Charge 5, you are convicted and discharged; on the summary matter, one month.  I direct that six months of the sentence imposed upon Charge 3 be served cumulatively upon the sentence imposed  on Charge 1, that gives a head sentence of 36 months.  In all the circumstances and making sure there is a proper relationship between the head sentence and the minimum term, I direct that you serve a minimum term of 16 months before becoming eligible for parole and I direct that 323 days be reckoned as having been served under this sentence  

14      So, you understand the benefit of having pleaded guilty to these matters.  Pursuant to s.6AA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four years with a minimum term of two and a half years.

15      Nothing else I need to do?  No other orders I need to make?

16      COUNSEL:  No. Your Honour.

17      HIS HONOUR:  Very well.

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