Director of Public Prosecutions v Power

[2016] VCC 226

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-01906

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM POWER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	16 February 2016
DATE OF SENTENCE:	7 March 2016
CASE MAY BE CITED AS:	DPP v Power
MEDIUM NEUTRAL CITATION:	[2016] VCC 226

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Ms M. Foley	Victoria Legal Aid

1HIS HONOUR:  On 3 July 2015 you took a knife into the supermarket at Rose Avenue, Norlane.  You threatened the worker there who was simply doing her job.  She ran in fear, you leant across the counter and took $400 from the till.  You used it for ice and other drugs perhaps, maybe some cigarettes.  In any event, it was wasted in very quick time.  A month later you were arrested on unrelated matters.  You were being escorted to the police station when you told police of this armed robbery that you had committed.  You repeated these admissions in a formal interview later at the police station. 

2You are currently undergoing a sentence of youth detention which began in August 2015.  It seems this armed robbery was the most serious of a wave of crimes committed by you in May to August 2015.  You were, at the time, homeless and using significant amounts of the drug ice intravenously. 

3While in Youth Detention you have done all you can to advance yourself with education.  In addition, you have engaged in counselling to assist your drug abuse and a range of other issues that have caused you difficulty in your life.

4You have just turned 19.  You are a very young offender for these adult courts.  Notwithstanding, your extensive criminal history in the Children’s Court, I must still apply the principles articulated by our Court of Appeal in R v Azzopardi and R v Mills in relation to sentencing young offenders.  Thus, I will give more emphasis to your rehabilitation and less to denunciation and general deterrence.  Though those two last mentioned sentencing purposes are not eliminated from my considerations.

5The offence was frightening and shopkeepers who necessarily deal in cash must be protected from knife wielding drug addicts seeking more money for their next hit. 

6You were raised mainly by your mother for the first part of your life.  You were shuffled between your mother and your father and state care.  You were exposed to significant violence meted out to your mother.  You witnessed drug use by family members including your mother and generally lawlessness and intermittent absence of parental responsibilities.  You were not well looked after as you grew up.  There was little focus on your schooling and you left at Year 9. 

7Your family life was dysfunctional and your developmental needs were poorly attended to.  At 16 you were under the care of the child protection authorities and housed by them.  Unfortunately, your place became an attraction for many young friends and acquaintances.  They came over, took drugs and generally misbehaved.

8You were removed from that housing and placed at a caravan park.  The same pattern broke out.  You had no idea really how to look after yourself and soon thereafter became homeless. 

9While you harbour a wish to live again with your mother and reacquaint yourself with your father both plans are very uncertain.  Your mother herself is often homeless and unstable.

10It is no surprise that you commenced drug use in your early teens if not a bit before.  Your use of ice in recent times has been at dreadful levels.  When in custody and abstaining you can focus on your education and planning for your future.  You have a young son who means a lot to you.  Sensibly, your partner – the mother of your son – wants you clean of drugs before she will resume any relationship.

11The testing that was done by the psychologist, Dr Cunningham reveals that you have a low IQ.  It may be that you need to connect with disability services in the future.  I will take into account your low IQ in the sentencing task in accordance with the principles set out by the High Court in Muldrock. 

12You are not a suitable vehicle for general deterrence.  Deterrence to you is also problematic.  You have been in detention – youth detention – before  without learning your lesson.  It is hoped it will sink in soon, but in this regard, your low IQ is a factor. 

13Your admissions and your plea of guilty are very weighty matters.  Without your confession to the armed robbery it is unclear, perhaps unlikely that the police would have connected you to the armed robbery.  You were remorseful in your police interview and I take this as a genuine recognition by you that you caused real fear to the victims.

14The only sentencing option in all the circumstances is further detention in the Youth Justice Centre.  It is always serious to deprive a young person of their liberty.  These years should be the best of your life but I have no other choice.  Your suitability was assessed by your youth worker.  You are suitable for a Youth Justice Centre Detention.  You would be vulnerable in adult gaol and the Youth Justice Centre is the appropriate form of incarceration.

15It is hoped you continue to do well in the Youth Justice Centre and, when the authorities consider you are ready, that you are paroled with significant assistance provided so as you can find accommodation, stay off drugs and gain the self-respect that comes from employment and from looking after your son but, in the end Mr Power – it is up to you.  Can you please stand?

16For committing the crime of armed robbery you must be detained in the Youth Justice Centre for a period of 15 months.  I order that this sentence of 15 months be concurrent with any Youth Justice Centre detention that you are currently undergoing.

17Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of two years and nine months in the Youth Justice Centre.  Your plea of guilty was very significant.

18Are there any other orders required?

19MS MAHADY:  Yes, Your Honour.  There is a disposal and compensation.

20HIS HONOUR:  Just take a seat, Mr Power.

21MS MAHADY:  And a forensic sample, Your Honour.

22HIS HONOUR:  You have got no pre-sentence detention, I take it.

23MS MAHADY:  One day, Your Honour.

24HIS HONOUR:  One day?

25MS MAHADY:  Yes.

26HIS HONOUR:  I declare that you have served one day of the sentence that I have just imposed – this one day of having been reckoned and the declaration made, I make sure it is entered into the records of the court so the Youth Justice Centre people are in no doubt that you have already done one day of the sentence that I have imposed.  I make an order to dispose of the knife that was used. 

27This is to undergo a forensic sample, it is not to retain – it is to undergo.  That is what it seems to be.

28MS MAHADY:  I will just check, Your Honour.

29HIS HONOUR:  I am sure you have got it right.

30MS MAHADY:  To undergo, Your Honour.

31HIS HONOUR:   Mr Power the prosecution applied that you undergo a forensic procedure.  That is a scraping from your mouth so that your DNA can be extracted and kept on a database.  I am going to grant that application.  The reason for doing so is the seriousness of your offending and prior convictions and that the granting of the order is the public interest. 

32What you have to understand is when the authorities come to take the scraping of your mouth that if you do not co-operate they are authorised to use reasonable force to get the sample.  Just – the way through it, of course, is just co-operate.  So, I have got two copies of that I have signed.  Is that right?

33MS MAHADY:  Yes, Your Honour.

34HIS HONOUR:  Is there anything further in relation to Mr Power.

35MS MAHADY:  No, Your Honour.

36HIS HONOUR:  Ms Foley?

37MS FOLEY:  No, Your Honour.  Thank you.

38HIS HONOUR:  Thank you very much for your assistance and that of the youth workers.  Mr Power you will be taken back to the Youth Justice Centre in Malmsbury or wherever and continue with the sentence until the Youth Parole Board at the time that they think it is right we will consider your case.  Thank you.

39OFFENDER REMOVED

40HIS HONOUR:  Thank you Ms Foley - again, for your considerable assistance in this matter. 

41MS FOLEY:  Thank you, Your Honour.

42HIS HONOUR:  You are free to head away.  We have got other matters to deal with later but they are not until 10 o’clock are they?

43MS MAHADY:  Yes, that is right, Your Honour.

44HIS HONOUR:  Very well.

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