Director of Public Prosecutions v Reid, Sean

[2013] VCC 701

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

AT GEELONG

CRIMINAL DIVISION

Case No. CR-13-00226

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN REID

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	21 May 2013
DATE OF SENTENCE:	21 May 2013
CASE MAY BE CITED AS:	DPP v Reid, Sean
MEDIUM NEUTRAL CITATION:	[2013] VCC 701

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S.A. Flynn	OPP
For the Accused	Mr B.D. Nibbs	Robert Stary Lawyers

HER HONOUR:

1       Sean Reid, you have pleaded guilty to five charges on an indictment and two related uplifted summary charges.  The charges all relate to a spree of criminal activity occurring between the 5th and 7 September of last year.

2       On the morning of 5 September a recent model Mercedes was stolen from the garage of the home where it had been parked overnight.  It would appear that for two days you had possession of that car and drove it and removed from it, amongst other things, two child car seats that were in the back of the car.

3       Two days later on 7 September you drove somebody, a Bradley Densley, in that car as you took him home from a place the two of you had been at to Mr Densley's home. 

4       After you left Mr Densley at his home, he then left his home, and when he returned discovered that items that had been in there had been stolen.  they were a PlayStation console, PlayStation games as well as assorted clothing and shoes.  Entry to the house had been forced by smashing a rear window. 

5       When your house was searched later on 7 September some of those items stolen from Mr Densley's bedroom were found in your possession. 

6       Later on 7 September, that is after the stealing of the items from Mr Densley's home, you were involved in a collision near the intersection of Shannon Avenue and Aberdeen Street in West Geelong.

7       From the agreed summary that has been put to me you were in the wrong.  You hit the driver's side of a car which was travelling straight ahead along Shannon Avenue.  The force of the impact caused the cars to hit a further car, hence, causing a three car collision.

8       A Mr Ryan was the driver of the Ford that your stolen car ran into.  He pulled over and was sitting in the driver's seat recovering from the immediate effect of the accident and getting ready to exchange names and addresses with the drivers of the other vehicles.  You got out of your car, got into the passenger seat of his and said to him, "Mate you just wrecked my $100,000 car, we're going to have to sort something out now, drive". 

9       Mr Ryan initially refused to drive away.  You demanded his licence and his phone number which he handed over innocently believing that he was doing that for the purpose of exchanging names and addresses following the collision. 

10      You then pretended that you had a gun in your pocket, using your hand to indicate you had a gun in your pocket, and directed Mr Ryan to drive off or be killed.

11      He drove off and you threatened him saying things like, "You don't know who I work for and you've got no idea what I can do to you".  He had the wit not to drive into an alleyway that you directed him into, despite the threats that you were making, but instead drove towards a more populous area where he stopped the car and got out of it. 

12      Before he did that you made a number of demands for Mr Ryan to hand over his wallet and his telephone.  Mr Ryan eventually got out of the car. He was so frightened of you and your threats he walked out with his hands up. 

13      You got into the driver's side of the car saying to Mr Ryan, "I'm taking your car.  Tell the cops I couldn't give a shit".  You then said to him, "I know where you live" and used a particularly offensive term, making Mr Ryan appreciate that the innocent purpose for which he had given you his phone number and his licence and address were now likely to be misused by you, in a frightening manner. 

14      You then drove off in Mr Ryan's car and Mr Ryan went into the Post Office nearby where assistance was called.  He was too distressed at that stage to be able to provide any real description, because of what had happened, and the police made arrangements to see him later.

15      A friend arrived to drive him home and on the way home you called Mr Ryan on his mobile phone, the number which you obtained after the accident, and threatened him.  You said, "You know who this is, don't you mate?  You owe me 100 grand.  50,000 today and every day you don't pay it another 5,000 per day".  When Mr Ryan refused you told him that you were coming after him and his whole family.  You reminded him that you knew his number and knew where he lived and you said you would get him somehow and you would kill his wife and children. 

16      He had at that stage two children, young, and a third on the way.  He was, not surprisingly, terrified, not only for himself, but more so for his children and his wife. 

17      Mr Ryan contacted the police and they went to Mr Ryan's home.  Four times more in the course of that afternoon you rang his number and the phone rang out.  On the fifth occasion left a chilling message on voicemail.  It was this, "Hey buddy, guess what, I'm coming to your house.  I want five grand.  You've got two days or you're dead, mate.  I'll come after your kids, Marisa cocksucker". 

18      Mr Ryan realised eventually that Marisa was a name that you must have found out because there was a school ID of one of his son's friends left in the car when you had stolen it from him. 

19      So terrified were Mr Ryan and his family, understandably, that they did not feel safe in their home and they went to stay somewhere else that night. 

20      Police, ultimately, were able to trace you through the telephone calls and through an identification of you from a photo board provided to Mr Ryan. 

21      The mobile number was registered to a Michael Reid, not a Sean Reid, suggesting that it was your phone but in a different name, and confirmed the number of phone calls made to Mr Ryan's phone that he had told the police about.

22      Police recovered the stolen Mercedes which had been left at the scene of the collision and found in it the items that had been stolen from Mr Densley's home earlier that day. 

23      By about half past ten at night police worked out where you lived and went to an address in Norlane where the car that you had stolen from Mr Ryan was parked in the driveway.  The engine was running and the reverse lights were on. 

24      You were arrested, and clothing that you were seen wearing earlier that day, and items connected with the making of threats to Mr Ryan and connected with the theft of the Mercedes, were found in your house or on your person.

25      You were interviewed and exercised your right to make a "no comment" interview. 

26      The affect on Mr Ryan and his wife has been profound and significant.  So terrified were they by the nature of the threats with the fact that you knew their address that they, not only did they move out that night, but they found themselves too fearful to live in the house.  It was a new house that they had just bought and were still in the process of moving into.  One that they had planned their hopes and dreams on for their family future together. 

27      Your selfish and callous conduct destroyed that dream for them and caused them, not only a terrible sense of loss of safety and security, but also significant financial loss.  Nothing can fix that for them.  One can only hope that with time they will feel a little safer, a little more secure and a little more protected from you.

28      At the age of 24 you have amassed a sorry and significant list of previous convictions.  You have convictions for violence, both personal and associated with stealing property.  Prior convictions for property damage, for bad driving, for driving when impaired by alcohol and driving without authority.  You also have a previous conviction for possession of ammunition that you were not authorised to possess and a number of convictions for offences associated with breaching court orders in addition to those interfering with your licence.  They include convictions for breach of bail, breach of restraining orders and breach of the conditions of a conditional suspended sentence. 

29      In all, on the convictions that you admitted, you were before courts on eight occasions between your first appearance in the Children's Court in October 2005 and your most recent appearance in the Magistrates' Court at Rockingham Magistrates’ Court in January 2012.

30      From what I was told by Mr Nibbs, on instructions from you and as presented in the psychological report prepared by Ms Carla Lechner, you have had a good upbringing in a stable and loving family, although at about aged six, you were diagnosed with ADHD.  You apparently responded well to medication and your family life and schooling were, in that sense, unremarkable.

31      In your early teens, it would appear, you started to go off the rails.  You began abusing drugs and alcohol and getting into trouble.  You fell out with your family. 

32      You discovered in your early teens that the man you had believed until then was your father was not your biological father and you were angry with your parents for, as you saw it, deceiving you about your true parentage.

33      From Ms Lechner's report it would appear that you remained so although you are aware and accept that your biological father had been violent to your mother,  that she had left him, so protecting herself and you from exposure to further violence from him, and that she had brought you up in a stable and loving family with a man who accepted you as and treated you as his son and brought you up as his child, a child of the family.

34      Despite the fact that you have now met your biological father and discovered that he has led a life which appears to have been devoted to abuse of drugs and alcohol and is now seriously, possibly terminally ill, suffering from multiple organ failure as a result of his substance abuse and has amassed a significant criminal record, which is no doubt in part linked to his history of substance abuse, you remain angry with your mother and your step-father or social father for what you see as the deception in your childhood.

35      The account you gave of yourself to Ms Lechner and to Mr Nibbs and the explanations that you gave to Mr Nibbs, which were advanced to me, for your criminal history all point, in my view, to a person who is too ready to blame others for his misfortune and who is not prepared to take responsibility for his actions or the consequences of them.

36      You blame you descent into drug and alcohol abuse and your consequent criminal behaviour on your response to discovering your true parentage and you blame your biological father for your relapse here by tempting you, or luring you, into continuing to abuse alcohol and drugs.  You blame the relapse into drug and alcohol abuse for the offending for which I must sentence you.

37      You left Western Australia in early 2012 and had been living therefore in the Geelong area for about nine months before the offending.  For much of that time you had been working and had been given the significant support to which I will refer in more detail shortly of one of your biological sisters whose attempts to find her biological siblings have led to the contact between the two of you.

38      You told her that you had come to Victoria to make a fresh start, to get away from your drug and alcohol abuse and your criminal offending history and for six months it appears you were able to do that relatively well.

39      You have been in custody since your arrest in September 2012.  Although Mr Nibbs, in the course of his plea, emphasised the steps that you had taken in custody to do courses that you thought would assist you, particularly in obtaining employment on release, nothing was said in the course of a plea delivered with his customary care and thoroughness, to indicate that you were sorry for what you had done or had any sense of shame or concern for the effect of your offending on your victims. 

40      Although in her report Ms Lechner had recommended residential drug and alcohol rehabilitation as the next step for you that was not put on your plea as one of your goals.  The most that was put was that you had now seen the effect of long-term drug and alcohol abuse on your father and so that had given you a real incentive to remain substance-free on release.  Admirable, as it is, again, it is concerned with yourself rather than your victims. 

41      The bleak picture that all of this presents is tempered by a number of matters which count well in your favour and point to a more optimistic view being able to be taken about your prospects of rehabilitation than your criminal history and your history of drug and alcohol abuse would suggest. 

42      The first and most significant is the support from your biological sister, Christie.  She was a most impressive witness.  Everything she had done, from the time she reached out to try and find her biological siblings through to the time that she readily and willingly offered you a home with her in Geelong, knowing that you had recently been released from prison and knowing that you had a history of drug and alcohol abuse, speaks remarkably well of her. 

43      She supported you on your arrival in Geelong, giving you accommodation in her small and crowded home with her young family and assisted you to find accommodation on your own when it was thought that you would do better living near her but independently. 

44      She has supported you whilst you have been in custody and has indicated that she will have a home for you upon your release.  It is strong and loving support that holds a real promise of a better way of life for you. 

45      I was very impressed, not only by her loving acceptance of you, but also by her description of the person you presented to her in the early months of last year when she first met you and when you were only occasionally impaired by drugs and alcohol.  I was impressed by her description of the re-emergence of that same person she had seen in those first few months as you have continued to spend your time on remand.

46      She is a decent, hardworking person who obviously has good family values and good working values herself.  That adds to the weight that I give to what she said.  You are very lucky to have the support of someone such as Christie and you should treasure and value that support and you should act in a way that shows that you deserve the trust that she is placing in you and the promise that she holds out to you for a better way.

47      The second matter that counts in your favour is your good history of employment, one which you have maintained despite the drug and alcohol abuse that has marked your life to date, and the amassing of that significant number of criminal convictions to which I have referred. 

48      You obtained your formal qualifications as a painter and decorator and I am told that you have had a good history of working in that field, both in Western Australia before your arrival here, and in Geelong since you came here early last year.

49      It would appear that you have had little trouble getting work, both on your own and as an employee, and you have shown dedication and diligence, according to Christie, in the time that you have been in Geelong, working first on your own, and when that was not enough to support you, obtaining work as an employee and earning the respect and support of your employer. 

50      Since being remanded you have not only done the courses that are offered to people on remand, dealing with drug and alcohol abuse, stress and better management of oneself, you have done a number of vocational courses.  Significantly you have obtained your certificate as a welder whilst in custody through Kangan TAFE and I am told that that is a field in which you plan to look for work upon your release. 

51      That history of work, that history of improving your qualifications whilst in custody and what that entails, a history of being used to getting up in the morning and going to work every day, of enjoying being occupied at work, I see as a positive factor in your life and it counts very much in your favour for your release. 

52      You are still relatively young and you showed on your arrival in Victoria a capacity, for a time, to either abstain or to manage drug and alcohol abuse, to remain in employment and to continue to have the support of your sister.  These matters add to the guarded optimism for your prospects in the future. 

53      Maybe this extended time in custody, the support of your sister, the appreciation of the dismal future ahead if you continue along the path that you have to date, the path that your father has apparently pursued, and a growing maturity, have brought you to a realisation that you do not want such a future and you will have to change if your future is to be different. 

54      Maybe seeing at close quarters the life your sister leads has made you, indeed, see that you want a life like hers.  A good job, a partner, a family, a home and a future free of drug and alcohol abuse and of offending and a cycle of imprisonment. 

55      The sentence I impose on you must balance these factors counting in your favour, hold out and support these signs of hope along with the need to denounce your appalling behaviour on these few days, to punish you for it and to deter you from acting in like manner again and to deter others who think that such behaviour is acceptable or something they can do.

56      As Ms Flynn said, these are serious offences and the blackmail and robbery offences, particularly, are serious examples of their type.

57      The threats that you made were cruel, calculated and persisted in over some time.  As the Victim Impact Statements so eloquently make clear they had the effect you intended, that is, to strike fear not only into your immediate victim, Mr Ryan, but also of the other victims, his family. 

58      I agree that it is appropriate to have a considerable gap between the head sentence and the non-parole period to hold out hope for you.  To allow the Parole Board if it sees fit to release you on parole a period of supervised release and to allow supervised assistance with drug and alcohol rehabilitation to occur and supervision in your work, supervision where you live and supervision in who you mix with.  Those are the things that are most likely to assist you upon your release to maintain the resolve that you are currently expressing.  It is to be hoped that some time along the way you start to develop some compassion for and concern for the people who you have hurt and impacted by your offending. 

59      Could you now please stand.  On all charges to which you have pleaded guilty, you are convicted.

60      On Charge 1 of theft of the Mercedes, you are sentenced to be imprisoned for a period of 15 months and I direct that three months of that be served cumulatively upon the partial cumulation orders I make and upon the base sentence. 

61      On Charge 2 of burglary, you are sentenced to be imprisoned for a period of nine months and I direct that three months of that be served cumulatively upon the other partial cumulation orders and the base sentence.

62      On Charge 3 of theft, associated with that burglary, you are sentenced to be imprisoned for a period of nine months.

63      On Charge 4, the charge of robbery of Mr Ryan's car, you are sentenced to be imprisoned for a period of two years and I direct that 12 months of that be served cumulatively upon the partial cumulation orders and upon the base sentence.

64      On Charge 5 of blackmail, you are sentenced to be imprisoned for a period of two years and six months.  That is the base sentence. 

65      On the Charge of unlicensed driving, you are fined an amount of $1,000.

66      On the Charge of failing to render assistance after a collision, you are fined an amount of $500.

67      That makes a total effective sentence of four years.

68      I direct that you serve a period of two years before being eligible for parole. 

69      I declare that you have spent 256 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

70      I declare, pursuant to s.6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you on Charges 1 to 5 to a total effective sentence of six years imprisonment and I would have fixed a period of four years as the time you would have had to have served before being eligible for parole.

71      I will note on the record that if the fines remain unpaid and no payment plan, or part-payment arrangement, is entered into to the satisfaction of the registrar.  and you apply for the fixing of a term of imprisonment in default of payment of the fines,  that my current thinking is that I would direct that any time to be served in lieu of fines would be served cumulatively upon the sentences I imposed today.  That is because I take the view that they are separate offences and should be dealt with separately rather than being part of a sentence to be served concurrently with the sentences I have already imposed. 

72      All licences held by you are cancelled and you are disqualified from obtaining a further licence for a period of two years.  That commences from today.

73 Pursuant to s.464ZF of the Sentencing Act I direct that you undergo a procedure for the taking of a forensic sample in accordance with Sub-Division 30A of Part 111 of the Crimes Act.

74      I direct that that be obtained by the taking of a scraping from your mouth, that is, a buccal sample.  I do so because of the seriousness of the circumstances of the offending, because of your prior convictions and noting that the order is not opposed.

75      I must warn you, Mr Reid, that if you do not consent to the taking of that mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken may well be a blood sample and that is a more invasive means of obtaining the forensic sample.  The police are authorised to use reasonable force to enable that forensic procedure to be conducted if you do not consent to it.  Do you understand that?

76      PRISONER:  Yes, Your Honour.

77      HER HONOUR:  Do the orders that I pronounced reflect what I said I intended to do?

78      MS FLYNN:  Yes, Your Honour.

79      MR NIBBS:  Yes, Your Honour.

80      HER HONOUR:  The arithmetic correct?

81      MS FLYNN:  No, Your Honour.

82      HER HONOUR:  Arithmetic correct?

83      MS FLYNN:  Sorry, I thought you said anything to correct, sorry, arithmetic is correct, Your Honour.

84      HER HONOUR:  Thank you.  That is all the ancillaries?

85      MS FLYNN:  Thank you, Your Honour.

86      HER HONOUR:  Thank you.  Yes, can you remove Mr Reid please.

87      (Prisoner removed.)

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