Director of Public Prosecutions v Pepper

[2014] VCC 1789

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 14-00407

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXANDER GEOFFREY PEPPER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	20 October 2014
CASE MAY BE CITED AS:	DPP v Pepper
MEDIUM NEUTRAL CITATION:	[2014] VCC 1789

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor	Office of Public Prosecutions
For the Offender	Ms D. Mitchell

HIS HONOUR: 

1Alexander Geoffrey Pepper, you have pleaded guilty to one charge of armed robbery.  You have also pleaded guilty to an uplifted charge of use a drug of dependence, namely, amphetamine.

2You pleaded guilty at the earliest reasonable opportunity.  You have expressed, clearly, appropriate remorse through Koori Court.  You must also get a utilitarian benefit of that plea of guilty.  All those matters go very much in your favour.  You handed yourself into police and were cooperative.

3You have, surprisingly I must say, bearing in mind the difficulties you had in your life, very few prior findings of guilt or convictions and that gives me a great deal of confidence in your personal capacity to rehabilitate yourself.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes, and Ms Mitchell will explain to you what you have got to do, but essentially is go to Sale police station, it is just a saliva, no needles or anything like that.  She will explain how you need to do that.

5The circumstances of the offending are that on 11 September 2013, in the early evening, you and Mr Perry and Ms Strickland and a Mr Abel discussed doing an armed robbery to buy methylamphetamine.  At that point in time, you had been using methylamphetamine for only a few months, but had been using it specifically for the three or four days prior.

6You drove to the Freedom Fuel service station in Sale.  Perry and Strickland remained in the vehicle and you and Abel went inside.  Abel loitered for a few minutes and then left and went back to Perry and asked for a $20 note in order to get the till open.  You and Abel then re-entered the store, and the attendant opened the till to change the money.  When she did that, Able approached her and held a large kitchen knife to her body, screaming, "Don't move or I'll stab you."

7You then removed approximately $360 from the till and you each fled the store.  You went down York Street and met up with Perry and Strickland.  Perry was handed the stolen money and he went off to buy the methylamphetamine.  You drove to the vehicle to the Sale Greyhound, where the knife was got rid of and a taxi was ordered.

8Perry and Strickland were then able to purchase cigarettes, alcohol and approximately $100 worth of methylamphetamine, some of which you used, which gives rise to that related summary charge.  You handed yourself in a couple of days later, as I have said, and made full admissions.

9The victim in this matter, as I indicated when I sentenced Mr Abel spoke of why armed robbery is such a serious crime.  The lady that was involved thought she was going to be hurt, she was worried that her children that night would not have a mother.  She has been having nightmares and finding it difficult to sleep and has left her with a continuing sense of insecurity and she is very stressed when she works.  She lost four days because of this, and money which was of real significance to her.

10That victim impact statement was read to you by Ms Taylor during the course of the plea hearing, this being Koori Court, and I accept that you sat there and you took what had happened to her and that you expressed appropriate remorse and grief at the damage that you and the others had done to her.  Again, in terms of your overall capacity to rehabilitate, that goes well for you.

11Your participation in Koori Court does not mean that you automatically get a lesser sentence, but it certainly means that a sentencing judge has a much better opportunity to asses where you are at and where you might be headed.  You conducted yourself very well.  I know from the material that you are basically a very shy person, but you are able to speak to the Elders and accept total responsibility for what you had done, and indicate that you have had a real desire to improve and basically as you put it, "Fix yourself up."  Your conduct since then has clearly shown that that was, indeed, a genuine intention.

12On the other hand, armed robbery has to be regarded as a serious offence and in the normal course of events calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.

13What became clear during the course of the hearing was that you had genuine cognitive difficulties.  I adjourned it to have you assessed for a community corrections order.  That has been done.  Also, you have been assessed for a justice plan.  I now have, before me, the statement of intellectual disability and adjustments plan prepared.

14It would seem, on your history, that you did not do well at school, as I am told by Aunty Di, member of the family did, that you and your brothers went to primary school and basically ended up with none of you who could read and write.

15Your mum has done the best that she can.  Your father was from Lake Tyers.  And you went to the Crinigan Road School in Morwell.  You did not do much insofar as school is concerned.  Mucked up a fair bit.  Started sniffing paint, smoking cannabis when you were about 13 or 14.  You then had a couple of Children's Court matters, which I do not think are of real significance here, bearing in mind the way you were living.

16The family moved to Sale and lived there for seven years, up until the offending took place.  Over the last five or six years, you have had to deal with a lot of sorry business.  Your father died in 2008, your brother Arthur died on 26 September in 2008, when he was hit by a train.  I am well aware of the circumstances of your brother's passing and we have had a number of other young fellas come through Koori Court who were deeply affected by that man passing that night.

17You have a subsequent prior for selling liquor to a minor, which I take little notice of.  In March of 2013, your brother, Lenny, suddenly passed, and it was around about that time that you started smoking methamphetamine.  Fortunately, and to your credit, you have never had a problem with alcohol but you have smoked cannabis since a very early age.

18You were using the amphetamine through smoking, I understand there is no suggestion of any intravenous use or diseases from any of this, and it all culminated in this armed robbery taking place on that night.  It is clear to me, having dealt with all of your co-accused and having read the material relating to it, that you, as is pointed out in the reports which I will refer to in a moment, are a shy young man with real potential, but are easily led and would simply fit in with what was going on around you.  I am sure that the nature of the offending is out of character for you if you had not been using amphetamine, but unfortunately that is what happens and it is one of the reasons why Ice, in all areas of this state, but particularly, I think, in the La Trobe Valley is such a dangerous and destructive substance.

19Firstly, insofar as parity is concerned, I sentenced Mr Abel to two and a half years with a minimum of 15 months.  At the time I sentenced him, he had already been in custody for about five months.  You did, in respect to this, about 12 days.  He also has an intellectual disability, not to the point of a justice plan, but there were significant differences between you.  Even though you are about the same age and both of Aboriginal background, he had a far more extensive criminal history than you did, and he had been in custody before, and, indeed, was in custody again.  His was a situation where the only real option was to give him an opportunity for a longer than usual parole period, and as I indicated when I sentenced him.  I can just only hope that has been put into effect.  He, I think, clearly has a far worse drug problem than you and his prospects of rehabilitating are not as good, I think, in fairness to him, as yours are.  In all those circumstances then, parity is not of great significance because even though there are similarities in different places, I would find, obviously, that he was the one who had the knife, he was the who made the threat and I have got no doubt that you were led, whether it was by him or young Mr Perry, I would not be too sure, but as they say, Mr Pepper, there you go.

20The reports that have been tendered on your behalf are extremely encouraging.  Aunty Di, who was at the original County Court hearing, is in court today, and once I have finished these remarks, I think that it is really worthwhile to have a bit of a yarn about what has occurred.

21The first of those reports that I have referred to is from Mr Jeremy Parker, who is a psychologist.  He saw you in May of this year, which is eight months after the offending.  And if I can say this, I think it is one of the clearest reports I have seen from a psychologist for a long period of time.  His summary, I think, can just be simply read in because it totally coincides with the ultimate view that I have taken of all of this.

22He said, "The results of the testing clearly suggest that Mr Pepper does have considerable cognitive defects, whether acquired at birth or later on in life, and this impacts on his ability to think clearly and to make calm and reasoned decisions.  People with significant cognitive deficits struggle when resolving problems causing them to be easily frustrated, angry and depressed.  There was an elevation seen on the PAI-antisocial scale.  This suggests that Mr Pepper has acted in an antisocial way in the past and can seek stimulation through risk taking activities.  Noted above, his, at times, impulsive behaviour should be viewed in the context of poor cognitive functioning and a lack of insight into his behaviour and the impact it has on others.

23"Cognitive functioning at Mr Pepper's level would be a significant contributing factor in his offending.  Many people with cognitive deficits are more agreeable and concede in the presence of authority and can be easily influenced by others.  Some of his offending may well be as a result of his lack of understanding and comprehension, leading to a deficit in consequential thinking.  People who have poor cognitive functioning are significantly distressed when incarcerated.  Their behavioural problems are magnified, they feel hopeless and are usually further victimised in prison.

24"I believe that Mr Pepper presents as a good candidate for rehabilitation in the community.  He has established himself as stable in supporting living arrangements, although he needs to develop better and prosocial social activities.  In my opinion, a community based order with treatment provisions to develop prosocial recreational activities would be the most appropriate order to address Mr Pepper's psychological and criminogenic needs."

25Now, I know you probably do not understand that lot, Mr Pepper, but what it is basically saying is that you are essentially a person who has got a lot of potential.  You have had to battle a lot of bad stuff in the past and the psychologist reckons you are worth a chance, all right, and that is what I think too.

26What I also have before me are the two reports from Ramahyuck and the community health treatment report, which I do not need to refer to.  Those reports from Dr Kathy Brotchie are very encouraging.  She describes how she met you in March of 2011.  You did the drug and alcohol course with La Trobe Community Health and I have got their report as well.

27You have explained to her that you have avoided alcohol for your entire life.  You told her, and this back in May of this year, that your real passion was about sport and being outdoors.  You were aware that others in the community were also likely to see that as a path, which provided an alternative to drugs, alcohol and courts.  She said that you are an inherently, which means very deeply, shy individual and that your self-esteem had been battered or knocked about, but is recovering now.  She had discussions with you, this is five months ago, about what you could offer the community, helping young unemployed individuals with football during the day and providing encouragement for people to come out.  Also to give encouragement to youth trying to gain employment and not to be ashamed or afraid to go outside the homes.

28It was pointed out that you have a number of individuals in your extended family who read well and they are prepared to help you in return for other assistance.  You, of course, have real difficulties with reading and writing things.  She said, at that time, that you were making some good choices and developed some lifelong habits which meant that you did not have to add to the burden of the justice services.  You had significant symptoms such as mood swings.  You went through the passing of your brother, Lenny, and she pointed out that you were taking the responsibility seriously and developing good habits, which could help you greatly in the future.  That was encouraging to read back in July, when we first sat.  But more importantly is what she has been able to tell us since, and this is why I have asked Aunty Di to come up.

29She pointed out that you had gone through the La Trobe Community Health intrepidity.  That you are no longer attending that unit, at the time that she wrote this.  That service had been discontinued.  We are waiting for more information about what will replace it.  It is so significant what happens down here, it is ridiculous.  But in any event, you are still not using.  You still remain a non-drinker and you are using strategies to enforce to enforce those things, which are working.

30She said that it is unlikely much more for you would be gained from further drug and alcohol services, but with the CCO, I will still put the condition there, just in case.  She said that your mood was good.  She said that you had ambitious plans.  The experience you went through with the arrest and the two weeks of lockup and the court dealings to be used quietly to assist other young people to avoid the traps that you had fallen into.  She said that you now have terrific insight into both yourself, the reasons for your behaviours and how young Aboriginal people in the community feel.

31The plan had been to start and informal football team, set up to kick a footy and to provide some alternatives to all the bad stuff which comes with being bored and unemployed.  She said that your team started with one nephew, which is not a very big team, I accept that, but she said that it is growing and there are now five of you, who attend on an almost daily basis.  She said that, at last, the plans for your future are proving true.  She has got doubts whether long term disability pension is in anyone's best interests and I share that view, but she thinks that your determination and you want to try and find your way through TAFE to address those things that make you feel vulnerable and why your education did not work in the past.  She says, and I think you must know this yourself, "He is clearly not dumb", and you clearly are not.  I have heard you talk and I have heard you deal with the Elders and that is very true.  You might have the intellectual deficit but you are not silly.

32She is now going to try and stop you smoking.  Good luck to her if she can do that.  She says she is very happy with the way you have now taken on board, "The concept of goal setting and your lifestyle changes which are well embedded now, I do not think he is a great risk of relapse."

33Now I was so pleased to read that this morning, Alex, and just see that the opportunity that you have taken, the respect that you have shown for the Elders by the way that you have kept going with this.  I think the prospects of your rehabilitation are good and bearing in mind, particularly at 27 with very few criminal priors and bearing in mind the difficulties that you have had to deal with in the community and in life, I think that the prospects of you reoffending, as was found by the Department of Justice, are low.

34That assessment says that you are suitable for a community corrections order and that the risk of you reoffending is low.  It still takes the view that you are at risk with drugs, and I think we have to be careful with that.  But it also deems you suitable for a 12 month community corrections order.  I am going to make it a little bit longer than that, because what I want to do is add one condition to what they are talking about.  I think that there should be and there will be, if you agree, work hours involved in it.  All right.  It will be 100 work hours.  What I will also do is put in the condition that any programs that you do will be counted as work hours.  All right, so if you are doing a little bit of literacy or something like that, those hours that you put in will count against the hundred.  But the reason, I think, Alex in your situation, that we want a few work hours is, as I understand it, you have never really worked.  This gives you a chance over a period of time to put in some work bursts, to work with other people and just get used to the idea of getting up in the morning and going on and getting a bit of work down, as part of your overall getting back into the community.

35They are happy with your determination to succeed.  I think that the interests of justice overall are adequately satisfied by a community corrections order, I will not go through all of the detail of it, but certainly the reading speech for the community corrections order was, "The purpose of the CCO conditions is to allow a court greater flexibility to impose a less restrictive order than imprisonment, where appropriate, potentially leading to a reduction in sentences of imprisonment with advantages of such as the promotion of the offender's rehabilitation and the preservation of family and community ties.  This supports the broader purposes of the Sentencing Act to prevent crime and promote respect for the law by providing sentences that deter reoffending and allow the court to denounce the criminal conduct and to provide sentences that facilitate the rehabilitation of offenders and ensure that offenders are punished to the extent justified by the offence."

36I am also told by Ms Taylor this morning for the Crown, that the new legislation is in effect, which says that community corrections orders may, in a sense or in effect, replace suspended sentences.  I think this situation could justify a custodial sentence, which in your circumstances I probably would have then suspended.  But in the situation that we are dealing with here, now, the work that you have put in over the last year or so and the work that people have put in for you is very impressive, and I think that even the victim who has received such a terrible fright as she did, would approve of the court endeavouring, at least, to help you being a worthwhile citizen and stop someone else being at the wrong end of a knife in a shop in the middle of the night.

37Having said all that, if you agree, you will be placed on a community corrections order on both charges, with the conditions outlined in the report.  That is assessment for drugs, 100 work hours, supervision, all work put into programs to be set off against work hours and the mental health one just to be on the safe side.  That will be totally covered with the justice plan, I have got no doubt, but just so that the power is there, and the special condition will be that you comply with the justice plan, which has been provided, dated 25 September 2014.

38MS TAYLOR:  And how long, Your Honour?

39HIS HONOUR:  That will be for 18 months, and it will be with conviction which is a punishment in itself.

40MS TAYLOR:  Just one thing, Your Honour.

41HIS HONOUR:  Yes.

42MS TAYLOR:  On the 464 order, I had put in the Bairnsdale police station for him to go to get the test done.

43HIS HONOUR:  I thought he was still in Sale, is he?

44MS TAYLOR:  Yes.  Your Honour, I might amend that ‑ ‑ ‑

45HIS HONOUR:  I will just change that Sale.

46MS TAYLOR:  Yes, is Your Honour happy?

47HIS HONOUR:  Yes, just change yours and I will change mine and Ms Mitchell can change hers.

48MS TAYLOR:  That is fine.

49HIS HONOUR:  All right.

50MS TAYLOR:  And Your Honour, it is at 60 York Street.

51HIS HONOUR:  Yes, that sounds right.  Can you just have a quick look at that, Ms Mitchell, make sure you are all right with it and we can get Alex to sign it if he wants to.

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