Director of Public Prosecutions v Pollard

[2018] VCC 58

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

AT GEELONG
CRIMINAL JURISDICTION

CR-16-01428; CR-17-01226

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK POLLARD

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	31 January 2018
DATE OF SENTENCE:	2 February 2018
CASE MAY BE CITED AS:	DPP v Pollard
MEDIUM NEUTRAL CITATION:	[2018] VCC 58

REASONS FOR SENTENCE
---

Subject:         Criminal law – sentencing – threat to kill, attempted armed robbery, prohibited person carry a firearm – immediate custodial sentence imposed.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr C. Pearson	James Dowsley & Associates

185232  Pages 1 - 10

 

 

HER HONOUR: 

1Mark Pollard, you have pleaded guilty on indictment to one charge of threat to kill, one charge of attempted armed robbery and one charge of prohibited person carrying a firearm.  Those offences are serious, and that is reflected in the maximum penalties prescribed by law and they are 20 years' imprisonment for attempted armed robbery and 10 years respectfully for threat to kill and prohibited person carrying a firearm.

2You were 24 at the time of the offending and you are now aged 26.  I will sentence you on the basis of the prosecution opening that was read at the plea hearing. 

3Briefly, the offending the subject of the charges took place on 23 February 2016 at about 7 pm.  The victim Phillip Bell was known to you.  You had met him through your older brother Joe with whom Bell had undertaken some employment training in approximately 2013.

4In 2015 you were released from prison and following your release, you developed a friendship with Bell primarily because he supplied and smoked Cannabis L with you regularly.  Whilst in prison he had stored your car at his premises in Thomson, which is a residential suburb of East Geelong.

5Your counsel Mr Pearson explained generally the context to the offending and stated that Bell had previously lent some moneys to your older brother, Joe, and was putting pressure on you to help you recover the moneys.  You refused to do this and as a consequence, your relationship with Bell soured somewhat and this was a source of tension between you two.

6By the time of the offending, your relationship had soured greatly and Bell describes you as being a “pest” but nonetheless you still continued to attend his home. 

7Around the time of offending, you were using heavily the drug methylamphetamine.  You were using half to a gram of methylamphetamine per day.  You were mixing with drug users, your long‑term relationship had broken down and you were drifting.  You were homeless and penniless. 

8The offending concerns you entering Bell's home armed with a silver pen firearm approximately 15 centimetres in length.  You demanded Bell's wallet and cigarettes.  On entry you were observed by Bell's former girlfriend, Jean Thompson, as being agitated and aggressive.  You demanded to see Bell who was in the lounge room sitting on a couch. 

9The gun, the subject of the charges was in the possession of your friend Ben Ainsworth.  He owned the car that you used with another male to drive to Bell's house on this occasion.  Earlier his windscreen had been shot at and he had acquired the pen pistol after that event and had kept it in his car. 

10When you entered the property you said to Bell, whilst standing in front of him, pointing the gun at him to “sit the fuck down”.  You said, "I'll shoot you" and that is the subject of the threat to kill charge.

11You did not know what motivated you to act in the manner in which you did on that occasion.  The events unfolded quickly.  Bell grabbed an axe handle with which he hit you numerous times.  You began wrestling with him and eventually you left the house and ran to the car.  Bell told you to leave and struck the windscreen with the axe handle as you drove off.  You yelled, "You are going to die tonight". 

12Police were contacted and attended the property and took statements and located various items.  It was not until two days later on 25 February 2016 that the silver pen pistol firearm was located by Bell in the front garden bed of his property.  The silver homemade firearm contained a .22 round of ammunition in the chamber. 

13You were arrested on 18 February 2016 and deemed unfit to be interviewed.  Ultimately you were interviewed on 20 April 2016 at which stage you denied all allegations.

14The pen pistol that was found at the property was later analysed and you were found to be a contributor to the DNA contained upon it.

15The basis for establishing that you are a prohibited person relates to the fact that you were sentenced on 28 April 2014 for firearms offences and on 6 January 2014 you were sentenced to a term of imprisonment and therefore you have committed an indictable offence for which you had undergone imprisonment within the last five years and therefore you qualify as a prohibited person.

16Procedural history:  you were arrested on 28 April 2016 and remanded in custody.  You were bailed on 8 July 2016 on credit bail on conditions.  On 14 July 2016 you were arrested for new offences and remanded in custody once more.  You were sentenced on 27 September 2016 to 6 months' imprisonment for the new offences and some offences that had been committed prior to 23 February 2016.

17On 27 September 2016 at Geelong Magistrates' Court the charges that you were dealt with concerned one charge of obtain property by deception, one charge of attempt to obtain property by deception, one burglary charge, one fail to answer bail charge, one fail to stop vehicle on police direction, one charge of fraud using an identity not authorised, one theft of motor vehicle, one deal with property suspected to be proceeds of crime, one commit indictable offence on bail, and a final charge, being a learner driver drive a vehicle without an experienced driver.

18You have been in custody, continuous custody, since 14 July 2016. 

19I have had regard to the principle of totality in formulating the appropriate sentence.  When arraigned you admitted your extensive prior criminal history.  Your appearances commence in the Children's Court on 10 August 2007 and continue in the adult jurisdiction, the Magistrates' Court, until 28 April 2014. 

20It is of particular relevance that you have prior convictions for being a prohibited person in possession of a firearm.  You were dealt with in the Magistrates' Court for that offence on an earlier occasion and on 27 August 2013, you were convicted of being in possession of prohibited weapon without exemption and approval.  You were sentenced to one month imprisonment. 

21The other prior convictions are largely for dishonesty, involving burglary, theft, handle stolen goods.  There are also convictions for various other driving offences and some offences relating to violence against the person, including reckless conduct endangering serious injury 2010, unlawful assault 2012, reckless conduct endangering life 2012, and reckless conduct endangering serious injury 2014.

22Over the years you have received a variety of dispositions including without conviction adjournments to good behaviour bonds to without conviction fines, community based order, Community Correction Order and partially and wholly suspended terms of imprisonment and imprisonment. Many opportunities have been afforded to you in the past by the courts.  To date, you have not taken up those opportunities. 

23On your behalf, Mr Pearson made a plea in mitigation. I accept from what I was told at the plea hearing that you did have a difficult and tumultuous early life.  Your mother is a long‑term heroin user.  She retained custody of you when she separated from your father when you were aged about four.

24You were the second born of two children.  You were born in Geelong.  You were raised initially in Geelong and rural New South Wales.  Your father and older brother, Joe, returned to live in Geelong following the parents' separation. 

25Both your father and your brother continue to live in Barwon Heads and it is proposed that you will live with them and work with your older brother upon your eventual release.

26Your older brother Joe has no prior criminal history, he is productively employed full‑time as a roof plumber and is willing and able to arrange employment for you upon his release.  He has in the past employed you and states that you are a good worker when not affected by drugs. 

27Your childhood was marred by your mother's heavy drug use and history of exposure to domestic violence.  Your mother had a history of multiple domestic partners and you witnessed violence against her during your childhood.

28At aged about ten your father ultimately secured custody of you and thereafter you returned to live in Victoria.  You have limited formal education.  You struggled at school.  You were diagnosed with ADHD in about Year 7 or 8 and for four years you were medicated with dexamphetamine.

29You have had a long‑term problem with dealing with amphetamines in your life. 

30You completed Year 10 at Bellarine high school and attempted but did not complete Year 11 at Gordon TAFE.  You are literate and you express a desire to undertake further programs whilst in custody, once you have been sentenced. 

31You have a son Kayden, who is now aged four, with your former long‑term partner, Alyssa.  She remains supportive of you and has been in regular contact with you.

32Your family, including your father and brother Joe have expressed considerable support for you.  Your brother Joe regularly visits and is in regular telephone contact with you and provides strong support.  He was present during the plea hearings.

33I noted that you developed a serious drug problem in your early teenage years.  You commenced smoking cannabis at age 13, progressing to experimenting to ecstasy, acid, and amphetamines thereafter. 

34At 16 you were smoking methylamphetamines, initially on an occasional basis but within a short‑term you were highly addicted and using heavily on a daily basis and that continued to be the case up until the time of your arrest.

35I accept that your early life was disruptive and damaging to your development.  That history made you vulnerable with drug use from an early age and also explains to a large extent the extensive contact that you have had with criminal justice system since your early childhood. 

36I have had regard to the principles set out in Bugmy v The Queen[1] where the majority of the High Court held, that the effects of a background of significant deprivation do not diminish over time and further serious offending and are to be given full weight as factors for consideration in sentencing

[1](2013) 302 ALR 192.

37I noted your heavy drug use at the time of the offending.  I accept that it provides a real context to the offending and an explanation for the offending, but it is not a mitigating factor.

38The circumstances of the offending are serious, involving as it does you going armed with a pen pistol into Bell's home, threatening him with the pen pistol in a menacing manner and demanding his wallet and cigarettes.  You were agitated and aggressive and intoxicated.  Your actions would have caused Bell and his former partner, Ms Thompson, to be fearful of you.

39I note that Bell was requested to provide a victim impact statement, but none has been forthcoming. 

40You specifically threatened to shoot Bell and at the time you were armed.  You offended against him in his home where he is entitled to feel safe.  You do not know what motivated your offending other than the relationship had soured over time and that your behaviour was erratic, having regard to your heavy use of methylamphetamines at the time.

41Overall, I do consider that your moral culpability is high. 

42In sentencing you I must emphasise deterrence, both general and specific and there is a need for strong condemnation of what you did. The protection of the community is also an important sentencing consideration.

43I note that you now have had a long time in custody and have reflected on your behaviour and through your counsel have expressed that you accept Bell would have been frightened by your agitated state and the fact that you arrived with the firearm.  You now wish that these events never happened.

44Overall I consider that a term of imprisonment must be imposed to reflect the gravity of the offending.  I note that it is necessary to avoid double punishment with respect to the attempted armed robbery and the firearms offence. 

45Nevertheless the gravity of your offending is serious.  The attempted armed robbery is a serious example of this offence.  Given you were armed and brandished the firearm whilst drug affected at your victim Bell when you were making your demands, the potential for real harm in these circumstances was great. 

46In respect to the firearms offence, it is accepted that your possession of the pen pistol was not in the category of being in furtherance of ongoing criminal activity and you will sentenced on that basis.[2] 

[2]See Berichon v The Queen (2013) 40 VR 490.

47In respect to the threat to kill charge, I consider this is a serious example of this offence because you had the capacity to effect the threat, being in possession of a loaded firearm.

48In sentencing you I have had regard to the mitigating factors.  Firstly, your plea of guilty.  I note that it was entered at a late stage prior to the commencement of the trial.  Nonetheless a plea of guilty is of real utility.  You have spared the witnesses the inconvenience and trauma of having to come to court to give evidence in the trial and also you have spared the State the expense of the trial.  To an extent it does demonstrate an acceptance of responsibility for your wrongdoing and provides some remorse for the offending.  You have facilitated justice and your sentence will be discounted accordingly. 

49Secondly, I have had regard to your relative youth.  You are 26 and rehabilitation is still an important sentencing consideration.

50Thirdly, I have had regard to the real and significant progress that you have made in gaol.  I consider that that reflects good prospects for rehabilitation. 

51Since you have been in gaol you have become physically well.  You are working as a billet and attending gym regularly.  Importantly there is evidence that you have been drug free since your incarceration.  Seven drug screens were provided to the court, taken over the period from 31 December 2016 to 1 January 2018, all of which are negative.  This is impressive given your significant heavy daily use of amphetamines. 

52As was commented during the plea hearing, this is the first time since you were aged 13 that you have sustained such a lengthy period of abstinence.  This is an important accomplishment for you and it provides a good guide to your prospects for rehabilitation.

53Currently, you are in the best place to continue your rehabilitation.  You have good prospects for your release, having the real support from your father and your brother Joe, a home and a job to go to.  The challenge will be for you to remain drug free upon your release and for you to continue your expressed desire not to associate with known drug peers and to be healthy, be gainfully employed and focussed on a crime free future. 

54Overall, I have considered that you do have reasonable prospects of rehabilitation.  I have also had regard to your expressed willingness to engage in psychological counselling, to deal with your drug issues and also personal issues upon your release.

55I accept that you do have insight into the offending and you now understand the link between your drug use and the offending.  I accept that you are genuinely motivated to change.  Your ultimate rehabilitation will be assisted by providing strong supports in the community upon your release through drug counselling and psychological treatment.  I have therefore fixed a shorter non‑parole period to enable consideration for your earlier release on bail supervised to enable you to be supported through your rehabilitation process. 

56Formulating the appropriate sentence, I have had regard to the gravity of the offending, the various matters that I have referred to in terms of your antecedents and mitigating factors, together with principles of totality and proportionality.  I must impose just punishment.

57Mr Pollard, this is serious offending and a term of imprisonment to be served is warranted. 

58Could you now please stand, I will announce the formal sentence.

59On the threat to kill charge, you will be convicted and sentenced to 18 months' imprisonment.  On the attempted armed robbery, you will be convicted and sentenced to 2 years' imprisonment.  In respect to the prohibited person carry a firearm, you will be convicted and sentenced to one years’ imprisonment. 

60Charge 2 is the base sentence, that's two years and I order that six months of the sentence imposed with respect to both Charges 1 and 3 be cumulative upon each other and upon the sentence imposed on Charge 2 making a total effective of 3 years' imprisonment. 

61I fix a non‑parole period of 18 months' imprisonment.

62I make the following declaration in terms of pre‑sentence detention.  I declare that you have served 468 days of the sentence imposed and I direct that that be entered into the records of the court.

63I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of 4 and a half years' imprisonment to serve 3 years' imprisonment.

64Finally I make the forfeiture order sought and the disposal order sought.  I note both those orders were not opposed.

65I think that covers everything, gentlemen.

66MR MAGUIRE:  It does, Your Honour, yes. 

67HER HONOUR:  All right, now the orders, I can sign those if you like, if you have those in court. 

68All right, I have signed those orders and they can be provided to the Crown and otherwise we can adjourn. 

‑ ‑ ‑