Director of Public Prosecutions v Read

[2018] VCC 1695

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02466

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUSTIN READ

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 October 2018
CASE MAY BE CITED AS:	DPP v Read
MEDIUM NEUTRAL CITATION:	[2018] VCC 1695

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. Fallar (Plea) Ms V. Mellios (Sentence)
For the Accused	Mr L. Richter

HIS HONOUR: 

1Dustin Read, at the end of 2016 and into the beginning of 2017, you were using drugs, drinking to excess and committing serious crimes.  Each of those destructive things were done, it seems, in the company of your then friend, Brydon Smith.  The most serious of your crimes was an armed robbery committed on 5 December 2016. 

2You and Brydon Smith bailed up two workers heading home late at night from a local sportsman's club.  You men brandished knives, were wearing disguises.  You stole the wallets and phones from the victims as they walked to their cars.  You also stole a car and then drove it recklessly in a bush area, before setting it on fire.  The car was totally destroyed.  The fire itself lit in the height of summer was also a dangerous acts. 

3Prior to that serious criminal conduct, you had broken into, or around the time of that serious criminal conduct, you had broken into The Zone entertainment complex and stole confectionary, drinks and game tickets.  The same time, or around the same timeframe, you also stored and thus handled goods stolen by Brydon Smith.  These were a cricket bag and bat, a concrete saw, ammunition and a tyre lever.  You were also storing computers and gaming equipment and a wallet stolen in a home invasion on 11 January 2016. 

4Mr Smith pleaded guilty to the home invasion and related crimes.  You were found not guilty by a jury of those crimes.  You had prior, in front of the jury, pleaded guilty to the handling stolen goods.  The intended victim of the home invasion was a young man who your co-accused, Brydon Smith, did not like.  You in fact assaulted this man by elbowing him in the shoulder in the streets of Bendigo on 2 December 2016.  You were arrested on 30 January 2017 and have remained in adult gaol on remand ever since.  That is 625 days. 

5You were just 19 at the time of this offending.  Your co-accused was younger.  You have, despite your young age, a concerning criminal record.  I will return to aspects of your personal circumstances and your prior convictions, but before doing so, I must consider the impact of your armed robbery on the victims. 

6It was a frightening episode.  The female victim said, "Before the incident I felt alive and full of life."  She says, "After the incident all of this changed.  I was left feeling useless and vulnerable."  She felt invaded because her personal identification was taken.  Because of the incident, she says she had been unable to sleep.  She had to take time off work and changed her hours, leading to less hours and then less money and then difficulties that she describes as bullying from her workplace.  She has had to go to counselling and has been diagnosed with post-traumatic stress disorder and anxiety. 

7On her lowest day she said she does not care if she is dead or alive and some days she thinks that the latter would be better.  She has gone from being a
fun-loving person always finding the positives in life, to feeling dead inside.  The incident has left her angry and scared and hypervigilant when she is out.  It has put a strain on her relationship.  She has been left with difficulties trusting people and situations and feeling safe and secure, even with her family.

8The male victim said for the first month after, he felt okay, lucky to be alive, but he says that wore off.  "Now I feel anxiety all the time.  I think about it every night when I go to bed and it takes hours to get to sleep."  He has had anxiety attacks at work and he has had to leave.  He is struggling financially due to the car being burnt and difficulties with insurance.  He said, "For me the bubble has burst.  I no longer see people as inherently good, decent people, but as angry, violent and potentially crazy.  I just don't feel safe anymore.  The only reason I'm not suicidally depressed is that I'm on anti-depressants and anti-psychotics to treat it." 

9They are serious impacts on ordinary members of the community going about their business, heading home from work, walking together when they were set upon by you two men with weapons and masks.  The taking of the car simply to drive it like a hoon, if I can use that word, and then gratuitously burning it, reveals your lack of moral character.  These crimes must be met by appropriate denunciation and punishment that deters you and others.

10Handling stolen goods normally is an offence where the offender promotes or encourages the thief to steal by providing a market.  That is not this case.  You simply stored the goods stolen by Brydon Smith when he was committing crimes, some with you and others on his own.  The burglary and theft at the entertainment Zone was juvenile-type crime, but nonetheless, concerning for the proprietors. 

11As to your personal circumstances.  You are now 20.  You have spent your 19th and most of your 20th year in prison.  This is no small matter.  Your parents separated when you were very young.  You were raised by your mother in Bendigo.  You were, to put it broadly and not pejoratively against you, but it simply is a fact, you were difficult to manage. 

12In short, your family and the circumstances of your upbringing were dysfunctional.  You were placed into the care of the State sometime, I think, around ten or 11.  Very early, in any event.  This was not successful or settling.  You were more or less homeless through your teenage years.  You were unable to remain at any of the many schools that you attended due to outbursts of anger and the inability to concentrate.  Your ADHD was never managed. 

13You were regularly before the Children's Court from 2013 with serious offences such as armed robbery and arson, as well as numerous weapons, violence, driving and dishonestly offences.  The rehabilitative supervisory orders that you were placed on were routinely breached.  You were then sent to lengthy term of detention in a youth justice centre from March 2016.  But these penalties have not deterred you, nor aided your rehabilitation. 

14You have been using drugs and drinking excessively from a very early age.  That is the description, Mr Read, that is accurate.  All that I can say is that you must gain some control over those addictions, otherwise you will continue to spend lengthier terms in gaol. 

15You have no family support, but you had a girlfriend at the time of these offences, but that relationship is no longer.  But you have a good friend, Mr Gavin Harris and he and his parents support you and I am told they will again when you are released by assisting you and giving you a place to stay with them when you are released.  Your deprived and bleak background remains relevant to my sentencing task.  It is hoped with some maturing as you grown a bit older and with the Harris family supporting you, that you can settle. 

16I do not ignore your youth.  Thus, your rehabilitation carries weight, but given your past criminal history and your inability to take up opportunities for reform, together with the seriousness of these offences, your rehabilitation must yield to the sentencing purposes of denunciation, deterrence and protection of the community. 

17I do not lose sight that your co-accused, having pleaded guilty to another set of serious offences, as well as the armed robbery that you committed and arson and other crimes together, that he received a three year youth justice centre penalty.  He did receive a significant benefit from his undertaking to give evidence on your trial.  That is a significant matter that distinguishes his overall case from yours. 

18But to return to your personal circumstances.  You were assessed by Ms Scott, the neuropsychologist, on 2 February 2018, mainly for the purposes of whether your record of interview was admissible.  Nonetheless, what is clear from the testing and the report, is that you have a low IQ.  You have difficulty in impulse control.  You have problems with anger and a low tolerance threshold when facing situations you find frustrating.  You have a way to go in maturing.  Your difficult life circumstances means that you have limited tools to assist you in dealing with anger, frustration and addiction. 

19I consider, to a small and limited degree, that your impaired mental functioning, as set out in the neuropsychologist's report, lowers your moral culpability for these crimes.  Thus I will moderate the weight of denunciation to a small degree.  The evidence of your conduct in prison would not lead me to consider that you will do prison harder because of any impaired mental functioning. 

20Finally, your age and your impaired mental functioning means that I am of the view that the ordinarily weighty matters of general deterrence ought be slightly moderated. 

21Your time in prison has been far from ideal.  You have been disciplined for outbursts.  Though, in some aspects, things look bleak.  It is hoped that you can come good, as your co-accused seems to have done.  And if you come under the influence of your good friend and his mother on release, it is hoped that this eventuates. 

22Your plea of guilty is important.  What I am dealing with here was what you offered to plead guilty to, as far back as April 2017.  You had made cooperative admissions in your record of interview to those offences. I take into account significantly, as I have indicated, the value of your plea of guilty. 

23Your counsel urged that a youth justice centre detention was appropriate.  There is, of course, much to be said for that disposition to keep a young person out of gaol.  It would more than prison, establish conditions that may facilitate your reform.  That is the purpose of a youth justice centre detention.  However, you have been in custody now for 625 days and your conduct has been problematic.  Thus, in my view, your time in custody now approaches a portion of punishment for your crimes.

24An issue for me is whether I impose a sentence that allows for you to be released on adult parole, or whether you would be best monitored on a community corrections order with programs directed at your drug problems and offending.  In the end I consider the appropriate sentence is one that involves imprisonment and then the potential for parole.  You will need that type of supervision on release. 

25While I am mindful of all that was said by the Court of Appeal in important decisions such as Boulton, in my view the appropriate sentence is one involving a head sentence of some years and an appropriate and just non-parole period.  Whether you are released on parole, of course, is for others, not me.  There are a number of crimes, but given the spree of offending in the short period of time, I will allow for significant concurrency.

26You can remain seated. 

27In respect of Indictment H10266535B.1, for committing the crime of armed robbery, you are sentenced to three years' imprisonment. 

28For committing the crime of arson, you are sentenced to one year imprisonment. 

29For committing the crime of burglary, you are sentence to nine months' imprisonment. 

30For committing the crime of theft, you are sentenced to two months' imprisonment. 

31For committing the crime of handling stolen goods, you are sentenced to four months' imprisonment. 

32In respect of Indictment H10266535A.1, for committing the crime and pleading guilty to the crime of handling stolen goods, you are sentenced to two months' imprisonment. 

33For an related summary offence that you pleaded guilty to of unlawful assault, you are convicted and discharged. 

34In respect of orders for cumulation and concurrency, four months of the sentence imposed for the crime of arson, two months of the sentence imposed for burglary, will be cumulative upon each other and upon the base sentence of three years for the armed robbery. 

35The sentence of two months on the Indictment A.1, will be wholly concurrent with the sentence imposed in respect of the matters on Indictment B.1.  There are no other orders for cumulation.

36That leaves a total effective sentence on all matters of three years and six months and I order that you serve two years before being eligible for parole. 

37You have served 625 days in prison thus far.  This figure of days having been reckoned, I declare that the 625 days is part of the sentence that I have just imposed.  I will ensure that that declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have served 625 days of the sentence I have just imposed. 

38Had you pleaded not guilty to all the crimes that you have pleaded guilty to,
I would have imposed a sentence, if you had been found guilty at trial, of five years, with a minimum of three years and nine months. 

39Are there other orders required to be dealt with? 

40MS MELLIOS:  Just the ancillary orders, Your Honour.

41HIS HONOUR:  Yes.  What are they, 464?

42MS MELLIOS:  I have got a disposal order and the order for the taking of a DNA swab.

43HIS HONOUR:  Sure.

44MS MELLIOS:  Only the DNA was e-lodged, because the parties were still in discussion, but I understand now the disposal order is not opposed and I have copies here.

45MR RICHTER:  That's correct, Your Honour, there's no opposition to those. 

46HIS HONOUR:  I have a got an application for a forensic sample.

47MS MELLIOS:  Yes. 

48HIS HONOUR:  Yes.  Well I propose to grant that application.  The reasons for that are the seriousness of the offending, prior convictions of the accused man, the granting of the order is in the public interest. 

49COUNSEL:  As Your Honour pleases.    

50HIS HONOUR:  In respect of the disposal order, can I just see that.  There is a number of items that are set out here that will be disposed of.  I do not intend to go through them. 

51Mr Read, just in terms of the forensic sample.  What that means is, that the authorities are empowered to seek from you a forensic sample, being a scraping from your mouth.  They will keep that for - to be placed on a database.  So you have to understand that if, at the time that the authorities request that you provide that sample, that if you do not cooperate, they are authorised to use reasonable force to enable the forensic procedure to be conducted.  Just cooperate with that.  Thank you.

52Is there anything else required?

53COUNSEL:  No, Your Honour.

54HIS HONOUR:  You will explain to Mr Read ‑ ‑ ‑

55MR RICHTER:  I will.

56HIS HONOUR:  I am not doing the maths, but 625 days and two years probably leaves him about ‑ ‑ ‑

57MR RICHTER:  I will explain all of the orders.

58HIS HONOUR:  ‑ ‑ ‑ three and a half/four months, something like that. 

59MR RICHTER:  Yes, Your Honour. 

60HIS HONOUR:  So if you are eligible for parole, whether you get it or not is a matter for you, but if you get parole and you do not comply with it, then it is just simply straight back to prison and if you do not straighten out, then you will keep doing terms of imprisonment.  It is a matter for you. 

61Anything further? 

62MS MELLIOS:  No, Your Honour.

63HIS HONOUR:  He can be removed. 

64I thank counsel again for their assistance. 

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