Director of Public Prosecutions v Quinn
[2014] VCC 1377
•30 July 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00521
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN THOMAS QUINN |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 28 July 2014 | |
DATE OF SENTENCE: | 30 July 2014 | |
CASE MAY BE CITED AS: | DPP v Quinn | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1377 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Two charges of armed robbery and two charges of recklessly driving a motor vehicle placing another in danger of serious injury – Defendant 21 at time of offending – Pleas of guilty with some remorse – Defendant had spent 300 days in custody since offending and had psychological issues – Psychological evidence that this is a crucial time for rehabilitation – Total effective sentence of 40 months – Non-parole period of 15 months
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S Bright | Wightons Lawyers |
HER HONOUR:
1 Benjamin Thomas Quinn, you have pleaded guilty to two charges of armed robbery each of which carries a maximum penalty of 25 years' imprisonment. You have also pleaded guilty to two charges of recklessly driving a motor vehicle placing another in danger of serious injury. Each of these charges carries a maximum penalty of five years' imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”).
3 At 2am on 10 August 2013, you and your two co-accused came across your two victims, Christopher Berta and Melissa Pett. You approached Mr Berta’s 2011 Holden Commodore utility, without realising that your victims were present. You apparently intended to steal a part from it, but, then, decided to steal the utility itself. You told Mr Berta that you “needed to borrow it for a while”, while your co-offenders stood behind you, shining torches into your victims’ faces. When Mr Berta protested, you produced a 15 centimetre long knife and pointed it towards his throat, stating, “You don’t really have a choice”. Both of your victims handed over their mobile phones and Mr Berta handed over his keys. You directed them to get into the passenger’s seat of the utility, where Mr Berta had Ms Pett sitting on his lap. You then proceeded to drive the vehicle, whilst talking on your mobile phone to your co-offenders, who followed in a vehicle behind. You were driving at speeds of up to 160 kilometres per hour. Your victims were terrified and pleaded with you to slow down. You told them that you were driving them to the You Yangs and that there you would “shiv ya in the back and leave you there”. Your victims pleaded with you to let them out of the car, which you ultimately did, some 15 kilometres from Geelong CBD. Your victims then ran to a nearby paddock and hid for 20 minutes, fearful that you and your co-offenders would return, and then found a farm house and called the police.
4 You drove Mr Berta’s utility to an address in St Leonards, where the number plates were removed. It was then driven to another address in Portarlington. The utility, valued at $30,000, has not been recovered. You sold Mr Berta’s phone for $250, but Ms Pett’s phone has never been recovered. Soon after the offending, you and your two co-offenders left Geelong and travelled to Perth, but returned a week later.
5 You were arrested in Geelong on 3 October 2013 and, in a record of interview, made admissions to police, albeit that you denied that you had threatened to “shiv” your victims and leave them in the You Yangs. Your co-offenders, Indiana Duffy and Aaron Saffron, are awaiting committal proceedings in the Magistrates’ Court.
6 You are presently aged 22 years, having been born on 28 April 1992. You come before the Court with a criminal record dating from your first appearance in the Children’s Court on 7 February 2008. Between that date and 2 July 2013, you have appeared before Courts on a number of occasions for dishonesty offences, particularly thefts of or from a motor vehicle, driving offences, and also an assault. From 25 May 2011, you have been given no less than four Community-Based Orders by the Geelong Magistrates’ Court. You have breached each one of those orders. The last such order was given on 2 July 2013, only five weeks before this offending. It is an aggravating feature of this offending that it breaches that order. It is also an aggravating feature that you were disqualified from driving a motor vehicle at the time of this offending.
7 In a plea on your behalf by Mr Bright, the Court was told that you have had a difficult upbringing. You have never known your father and, when you were five years old, your mother re-partnered with a man who was quite violent. This relationship ended after a period of time and there were a succession of boyfriends of your mother whom you did not like. When you were 10 years of age your mother began a relationship with her current partner, Tony. Tony had a son, Keenan, with whom you were quite close. Tragically, in 2011 Keenan, who was then aged 14 years, died during an asthma attack. The Court was told that following this, Keenan’s father, that is your stepfather, could not cope with having a teenager in the house and you were asked to leave. This resulted in a period of insecure accommodation and homelessness, abuse of alcohol and an escalation in your use of illicit drugs, particularly amphetamines.
8 It seems that, even prior to this time, you had some behavioural difficulties and acted out at school and were expelled on a number of occasions. After leaving school in Year 10 you were employed with two different employers undertaking a carpentry apprenticeship. This employment ceased after two years. You then completed a Certificate III in hospitality and worked for a time as a bartender, however, you lost that employment over one year ago.
9 Tendered on the plea were two reports from Mr Gary McMullen, psychologist (Exhibit “1”). The first report, dated 13 November 2012, had been prepared in relation to an earlier court appearance. In his view you met the criteria for a diagnosis of ADHD. In his more recent report, dated 21 April 2014, which is 18 pages in length and not a model of crystal clarity, he noted that, after he had seen you in 2011, you had attended Jigsaw and were formally diagnosed with ADHD and prescribed Ritalin. He reported that you told him that you found it too expensive, and went back to using crystal methylamphetamine because you could obtain it more cheaply. He stated that methylamphetamine apparently had a paradoxical effect on you, in that it helped your mind slow down. You never returned to Jigsaw for treatment of your ADHD.
10 Mr McMullen also took a history of symptoms of Post-Traumatic Stress Disorder, apparently related to Keenan’s death. He stated that, in 2011, these symptoms were causing severe impairment to your functioning. It was not clear from his report that this still remained the case. He considered that impulsivity was a more prominent feature of your ADHD than hyperactivity, and noted that anxiety can often accompany ADHD as a secondary feature, although he did not specifically relate this to yourself. However, he did consider that you suffer from longstanding depression and diagnosed you as suffering a Major Depressive Disorder of moderate severity with anxiety and distress. He also stated that you qualify for a Substance Use Disorder (amphetamines), albeit that it is in early remission since you have been in custody. Mr McMullen considered that you were at a crucial point in your life, where you needed treatment for your ADHD and psychological symptoms and that you required close supervision.
11 Whilst I take into account that you have had an unstable upbringing, and that you do apparently suffer from ADHD and a Major Depressive Disorder, there are some very concerning features in Mr McMullen’s report. He stated that, on applying the Static Risk Index Tool, your results indicate risk factors for recidivism that are very high and factors that protect against criminal behaviour and recidivism are low. He also noted that you have a very high score indicative of pro-criminal attitudes, a very high score for manipulative, impulsive and angry behaviour, and a high score for aggression, negative social influences and relationship problems. In addition, he reported that you have a very high score for self-esteem problems and are in the 99th percentile for drug and alcohol-related problems. These factors cause me grave concern as to your prospects of rehabilitation, although Mr McMullen did note that you achieved a high score for cognitive/behavioural regulation, meaning that you were able to learn from previous mistakes and also a high score for ability to learn anger regulation.
12 Mr Quinn, unhappily, although you are only aged 22 years you have a significant criminal history and the offending for which I must sentence you is very serious indeed. Although I accept that there was no planning that went into the armed robbery, the fact of the matter is that you and your two co-offenders outnumbered your victims. You were handed the knife by one of your co-offenders and used it to threaten your victims, while being backed up by your co-offenders shining torches into their faces. Your conduct in stealing Mr Berta’s utility and the mobile phones of Mr Berta and Ms Pett was high-handed and bullying. You left them stranded, without any means of obtaining assistance. Your driving was of a gravely reckless nature. While Ms Pett was sitting on Mr Berta’s knee in the front of the utility, you drove at an insanely high speed, whilst, at times, using a mobile phone and, according to your counsel, whilst under the influence of methylamphetamine. It is fortunate that you did not have an accident and cause death or serious injury to your victims, yourself or other road users. You have a history of careless driving and, in my view, your being under the influence of amphetamines, whilst compelling Mr Berta and Ms Pett to endure a terrifying ordeal, is an aggravating factor. It is plain that they were scared out of their wits and pleaded with you to slow down and, then, pleaded with you to release them from the car.
13 The Victim Impact Statements tendered make it plain that they have suffered ongoing fear and anxiety as a consequence of your appalling actions. Mr Berta describes how he feels angry and depressed. He also describes feelings of being “on edge”, such that he drives with his doors locked at night and finds it hard to trust others. In addition, Mr Berta suffered financially because he had taken out a loan to pay off his vehicle and received insurance of some $10,000 less than the amount he owed. Thus, he had to take out another loan, in order to meet his repayments, and, also, had to pay an excess of $250 to his insurer. Ms Pett describes how she, too, has difficulty trusting people. She has suffered sleep disturbance, depression and anxiety. She states that she really feared that she and Mr Berta were going to die on the night that you offended against them. She also suffered the inconvenience of her phone not being recovered and had to pay out for the cost of a new phone.
14 The consequences described by Ms Pett and Mr Berta are foreseeable and understandable results of your disgraceful conduct. Your self-indulgent, gratuitous dishonesty and recklessness whilst high on methylamphetamine has caused great grief to your innocent victims, as well as inconvenience through their being deprived of their property and suffering consequential financial loss. Irresponsible people like you, who take methylamphetamine and behave with such gross disrespect and dishonesty towards innocent members of the public, must be made aware that such conduct will not be tolerated and will meet with just punishment. In sentencing you, there must be denunciation of your conduct and emphasis upon general deterrence and, in the light of your poor criminal record, specific deterrence.
15 I take into account that your psychological difficulties should mitigate to some extent the emphasis to be placed on general deterrence and I accept that, in the light of these difficulties, you may well find prison more burdensome than others who do not suffer such problems. However, I find that the primary factor in the commission of these offences was your use of methylamphetamine and there was no direct nexus between your psychological condition and the commission of the offences.
16 I am conscious that rehabilitation usually would be the predominant sentencing principle when dealing with someone who was only 21 at the time of the commission of offences, and is now only 22. However, the fact that you have breached every rehabilitative disposition formerly given to you, that the last such disposition was only five weeks prior to this offending, and that Mr McMullen reports that you have traits which suggest a high risk of recidivism, leaves me to be very guarded indeed about your prospects of rehabilitation. Nevertheless, it would be wrong of this Court to ignore what prospects of rehabilitation you do have.
17 I take into account that, unlike your co-offenders, you cooperated with the police and pleaded guilty at an early stage. Moreover, since committing these offences you have now spent 300 days in custody. I accept that, for a person of your age, being in an adult prison for the first time, particularly given your psychological condition, is likely to be onerous. Your counsel stated that you had used this time to seriously reflect upon your lifestyle and are determined not to end up like an uncle of yours, who has been in and out of prison all of his life. You report that you have remained drug-free whilst in custody. Also, you have undertaken a number of courses relating to harm reduction, work planning and life skills, alcohol and drug rehabilitation, first aid, workplace hygiene and safety, and routine gas metal arc welding. It is to your credit that you appear to have used your time in custody profitably.
18 The very serious circumstances of your offending leave me in no doubt that the only appropriate sentence on each charge is a term of imprisonment, with an immediate custodial component to be served. However, I consider that you are entitled to a high discount upon the sentence which, otherwise, I would have imposed by reason of your early pleas of guilty, and it would appear in your record of interview that there is some indication of remorse. Further, your psychological condition and relative youth cause me concern that all prospects of rehabilitation may be lost if you are incarcerated for a very lengthy period in an adult prison. I am mindful of the view expressed by Mr McMullen that you are at the crossroads, in the sense that this may well be a crucial time to seize what prospects you have of rehabilitation. Although I must ensure that the sentence imposed adequately reflects the gravity of your offences, I have concluded that, in your case, it is appropriate to set a disproportionately shorter than usual non-parole period. I do this in the hope that a substantial period of supervision on parole will assist your rehabilitation and ultimately be in the best interests of the community.
19 Would you stand up please.
20 On Charge 1, armed robbery, you are convicted and sentenced to be imprisoned for a period of two and a half years.
21 On Charge 2, armed robbery, you are convicted and sentenced to be imprisoned for a period of two years.
22 On Charge 3, reckless driving placing a person in danger of serious injury, you are convicted and sentenced to be imprisoned for a period of two years.
23 On Charge 4, reckless driving placing a person in danger of serious injury, you are convicted and sentenced to be imprisoned for a period of two years.
24 The sentence of two and a half years imposed on Charge 1 is the base sentence. I direct that two months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 3 and four months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed upon Charge 1 and upon each other. The total effective sentence is thus 40 months’ imprisonment. I direct that you serve a period of 15 months’ imprisonment before becoming eligible for parole. I declare a period of 300 days pre-sentence detention to be time reckoned as already served under the sentences imposed this day.
25 Pursuant to s464ZF of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of the offending, together with your prior convictions.
26 Mr Quinn, you need to be aware that this involves your placing a swab inside your mouth in order to take a sample of saliva. If you do not cooperate with the taking of such sample then the police are entitled to use reasonable force to ensure that one is obtained.
27 Pursuant to s86 of the Sentencing Act 1991, I order that you pay compensation in the sum of $250 to Christopher Berta. I further order that you pay compensation in the sum of $30,010.81 to the Claims and Administration Department of AAMI, PO Box 2988, Brisbane, Queensland, Australia, 8001.
28 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been six years’ imprisonment with a non-parole period of three years.
29 Mr Quinn, I appreciate that you are only 22 years old and I hope you will not lose heart. You have shown some promising signs whilst in custody and, if you continue in that positive way, by avoiding drugs and trying to improve your skills, you can still turn your life around. I hope that when you are released from custody you will take advantage of the supervision offered to you on parole. This Court sincerely wishes you well with your rehabilitation.
---
0
0
0