Director of Public Prosecutions v Reincastle

[2020] VCC 221

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01852
CR 19-02042

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN REINCASTLE
LUKE BOKOS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2020
DATE OF SENTENCE:	6 March 2020
CASE MAY BE CITED AS:	DPP v Reincastle & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 221

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hartshorne (For Plea)
Ms J. Lavka
(For Sentence)
For Accused Reincastle	Mr J. Fink
For Accused Bokos	Mr J. McGarvie

HIS HONOUR: 

1Luke Bokos and Jonah Reincastle, you have each pleaded guilty to one count of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment.  In addition, you Mr Bokos, pleaded guilty to the summary offence of failing to appear on bail in relation to this charge.  In my view, both pleas of guilty came at an appropriate time and have a utilitarian benefit and I will take them into account accordingly.

2The offence was committed on 20 June 2019.  As such, the armed robbery offence is defined as a category 2 offence.  The law provides that in sentencing you for this offence the court must sentence you to imprisonment.  The law also says that this cannot be a combined period of prison with a CCO.  The law makes an exception to this mandatory period of imprisonment, and the prohibition on a combination sentence with a CCO, if there are 'substantial and compelling circumstances that are exceptional and rare and that justify not making such an order'.

3It is this requirement and the question of whether or not you both meet the exception which occupied most of the submissions made by your lawyers.  I shall return to this issue later in these sentencing remarks.

4The Crown tendered the prosecution opening on plea as Exhibit A.  A brief summary of your offending is as follows.  At the time of your offending you were both known to each other and were both using drugs on a daily basis.  You were at the home of 17-year-old Zachary Holmes when it was decided between the three of you to pretend to sell two bottles of the drug Xanax.  The plan was to offer the drugs for sale to an unwitting purchaser and to rob the purchaser of money when it was produced.

5A purchaser was found through a social media platform.  You, Mr Bokos, downloaded a picture of the drug Xanax from the internet to send the victim.  The three of you formulated the plan to rob the victim.  To do so you all left in a car with you, Mr Bokos, driving.  Holmes took his military-style imitation pistol with him in the car.

6You met the victim and he got in the car.  He asked to be driven to an ATM to withdraw money to pay the asking price of $370.  Once he was in the car Holmes produced the imitation pistol and pointed it at the victim.  He put the gun in the complainant's mouth and threatened to kill the victim's family if he lagged.  The victim stated to police he was frightened throughout the incident.  He was scared he could be shot, but did not think that he would actually be shot.

7When the gun was produced, you both variously told the victim to the effect that he should comply with your demands and that everything would be all right.  The victim had earlier handed over his wallet containing $330.  A demand was made for his mobile phone.  He handed that over as well.  Fortunately, two patrolling police officers saw your car and stopped.  The victim alerted the police; the imitation firearm, the cash and phone were seized and you were arrested.

8You were both interviewed.  You both admitted the plan to rob the victim and both admitted putting that plan into effect.  You both denied knowing that Holmes had the imitation firearm with him at the time you got into the car.

9I interpose at this point to say that the Crown concedes that the plan was to commit a robbery and not to commit an armed robbery.  The Crown submits, and your lawyers both agree, and as evidenced by your plea of guilty to the charge of armed robbery, you were both complicit in the commission of the armed robbery past the point where Holmes produced the gun, pointed it at the complainant, put it in his mouth and made demands.

10In your interview, Mr Bokos, you admitted being present but otherwise denied involvement in the armed robbery.  In your interview, Mr Reincastle, you admitted saying to the victim after the gun was pulled out, 'If you do like we say, nothing will happen to you'.  You both told police that the plan was to get some money.  Mr Reincastle, you stated that you did it for drugs.  Both of you stated you were ashamed, disappointed in yourselves and felt bad for the victim.

11I turn now to a consideration of the objective seriousness of the offending and the moral culpability of each of you for your actions.  This offence of armed robbery targeted a true soft target, a 17-year-old boy, who was lured into a car by a ruse in which he was confined and had little opportunity to escape.  You had the force of numbers on your side.  Whilst it is true that you did not plan to commit an armed robbery, you saw what your co-offender did in producing the gun and putting it in the victim's mouth and you both proceeded with the plan to make demands of the victim.  

12Your complicity in the actions of your co-offender was both cowardly and callous.  The action of putting an imitation firearm in the victim's mouth had the desired effect:  He readily handed over his phone, having previously handed over $330 cash; and it made him feel very scared.  This is a serious instance of armed robbery, notwithstanding the weapon used was an imitation.  To the victim it appeared real.

13Your moral culpability is lessened by the fact that the plan formulated by you was one of robbery.  In effect you intended to use the fact that you were a force of three against one and to use the confines of the car to force him to hand over the money.  Initially, neither of you knew that your co-offender had the imitation weapon.  However, once it was produced, you both went along with it and participated in the armed robbery.  Your actions must be met by principles of deterrence, denunciation and just punishment.

14I was told that you were both given bail after you were arrested and interviewed.  Mr Bokos, you were bailed to appear at court on 26 June 2019 but failed to appear.  At some point, Mr Bokos, you spent one day in custody.  Mr Reincastle, you were arrested on 26 June 2019 and spent 137 days on remand attributable to this matter.  Although you spent longer in custody and you were not released until 3 December 2019, some of the time you were in custody was attributed to another matter.  You both pleaded guilty, as I have said, to the charge at the earliest opportunity.

15I turn now to consider your personal circumstances. 

Luke Bokos

16To you first, Luke Bokos, you are 18 years of age, nearly 19, and you were born on 20 March 2001.  For almost your whole life, you lived with your family on their block in Upper Beaconsfield.  Your father works as an electrician and your mother works at a plant.  You have one sister.  Your father and sister were present in court for your plea whilst your mother worked.  It is apparent you come from a loving and caring family.

17Neither your mother or father drink alcohol.  You were raised within the Seventh Day Adventist Church.  Your parents have had some difficulty grappling with your problems.  Over the years, you were a good student and then a good employee.  You started work experience in Year 10 from school with Prentice Plumbing.  You continued holiday work with that employer and then commenced a plumbing apprenticeship in that same year.  You completed two years of the apprenticeship trouble free.

18You have been using cannabis since your early teens.  In February 2019, you started using methylamphetamines after you started moving with a new crowd of friends.  The drug quickly got you in its grip and by April 2019 you left your job and your home to move in with these so called 'friends', but it turns out you only had drugs in common.  Your father visited you with your friends and was shocked by what he saw.  By June 2019 you were using ice daily.  It was against this background that the offending occurred.

19It is apparent that your arrest and interview did not serve as an immediate wake-up call to you.  You returned home to live in July 2019, but, as your father stated in his evidence before me, you were still using drugs at that time.

20In August 2019 you started work at a new job but injured your hand badly and spent 2½ weeks in hospital having a skin graft.  It was only after that time that you commenced a youth justice supervised bail order on 30 August 2019.  The report of your case manager, Ms Isabella Clark, is frank about the progress you have made in the last 5 ½ months.  On Ms Clark's assessment, you have responded very positively to the supervised bail and you consistently engage with youth justice in a highly respectful manner.

21You were candid with Ms Clark about your drug use and she assessed that you have genuine remorse for your offending.  You have regularly told her of your strong feelings of regret and you have demonstrated a strong awareness of the impact of your offending upon the victim.  You have also expressed a strong desire to step away from your antisocial lifestyle.

22Your attendance on the order has not been perfect.  You have missed about three appointments without a valid reason and it is apparent that you have lapsed back into drug use on occasions.  Nevertheless, Ms Clark reports your home environment to be stable and secure and that you have strong prosocial support from your immediate family and extended family members. 

23In the last number of weeks you commenced employment again with Prentice Plumbing.  I was somewhat disconcerted on the last hearing date when your lawyer told me that your employer did not know of these charges and did not know that you are facing the likelihood of a period of confinement.  That has now been rectified.  Your employer knows exactly that you face a period of confinement and even in the face of that, he has offered you employment on your return back to society.  That is a positive step.

24Ms Clark considers your efforts to overcome your drug dependence are genuine, although not without relapse, as I have noted.  Youth Justice considers that your personal motivation together with support available to you will assist you to continue engaging in a prosocial lifestyle within the community.

25The report of Gareth Joubert dated 18 February 2020 from the Youth Support and Advocacy Service states that you successfully attended a number of counselling sessions to address your drug and alcohol intake and emotional regulation.  You identify employment as a major motivating factor to remain abstinent from methylamphetamines.  In addition to remaining abstinent from methylamphetamines, you have recently ceased cannabis use and significantly reduce your alcohol intake.  Although you are no longer engaged with Youth Support and Advocacy Services, Mr Joubert states that you are able to reengage their services should you need to whilst in the community.

26Finally in this respect you attended at least five sessions with a psychologist, Dylan Darcy, for cognitive behavioural therapy to alleviate symptoms of depression, anxiety and substance dependence.  Mr Darcy reported that your depressive and anxiety symptoms have 'waxed and waned' in the period late October 2019 to 16 February 2020, but you have reduced your negative thinking and your mood has improved.  Mr Darcy considers, and you have agreed, to further psychological intervention.

Jonah Reincastle

27I turn to you now, Mr Reincastle.  You are 20 years of age and you were born on 12 July 1999.  That means that you turn 21 later this year.  You were supported in court by your parents.  You still live at home with your parents and five siblings.  You have strong support from both parents but particularly your mother.  Your parents are hard-working; your mother works two jobs to support the family and your father is in full-time work.  There has been some conflict with your father arising from your historical drug use.

28Although you reported having a happy childhood and you completed Year 11 at high school, in your teen years you began to experience feelings of depression and isolation.  You did not ever feel like you particularly belonged.  You started using cannabis from the age of 15 and ice from the age of 17.  By 19 years of age you were using ice on a daily basis.  You told your lawyer that your drug use was a way of self-medicating to deal with those feelings of isolation and depression, although you have not had a formal diagnosis of any mental health condition.

29In 2018 you received a non-conviction adjournment on charges of theft and committing an indictable offence whilst on bail.  I was not given any real information about those matters, but I accept that it only minimally impacts on your position.

30At the time of your offending you were frequently absent from home and using ice daily.  You told the police you were ashamed of your offending and that it was committed to fund your drug use.  As I have mentioned, you were remanded in custody from 26 June to 2 or 3 December 2019.  You served 137 days by way of presentence detention attributable to this matter.  You have lived at home since you were released on bail.

31Your mother gave evidence that since you returned home there has been a big change in your attitude to and in the family dynamics.  She stated that you have begun to redevelop positive relationships with your siblings, you show respectful boundaries, you contribute to household chores and you have made a real effort at abstinence from drugs.

32You commenced on youth justice bail supervision order upon your release from custody on 2 December 2019.  Your case manager Robert Dovey reports that you have attended all scheduled appointments.  You are receptive to interventions, you have shown insight into your negative behaviours and you are open to education and you have engaged in discussions regarding harm reduction in relapse prevention.

33Mr Dovey reports that you lapsed from your abstinence in drug-taking on one occasion.  In addition, you had continued to use cannabis, but you have even stopped that in the last little while.  You have expressed a sense of achievement and satisfaction for this and you intend to maintain your abstinence.  You attribute your persistence to your strong support network.  Finally, in this respect Mr Dovey reports that you have obtained your white card, your fork-lift licence, and engaged with an employment-seeking service to find a job.  From all of this, Mr Dovey considers you are taking positive steps to mitigate your risk of future offending.

Submissions:  Luke Bokos

34I turn to the submissions made on behalf of both of you.  Mr McGarvie submitted for you, Mr Bokos, that there were substantial and compelling circumstances that are exceptional and rare such as to justify not imposing a period of imprisonment or confinement in your case.  These circumstances must be established by you on the balance of probabilities.  In determining whether there are substantial and compelling circumstances, the Sentencing Act states that I must:

•    regard general deterrence and denunciation of your conduct as having greater importance than other purposes set out in the Act; and

•    I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offending; and

•    finally in this respect I must not have regard to your early plea of guilty, prospects of rehabilitation or parity with other sentences.

35Further, I must have regard to Parliament's intention that in sentencing you for this offence an order for imprisonment or confinement should ordinarily be made; and I must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

36Essentially Mr McGarvie submitted that the substantial and compelling circumstances that are exceptional and rare in this case arise from the fact that you were 18 years of age at the time of committing the offence and that you have no prior convictions.  Mr McGarvie further submitted by reference to sentencing statistics that only 10.7 per cent of offenders sentenced for armed robbery are under the age of 20 years of age. That is, by implication, this percentage must be even smaller if one were able to extrapolate the number of 18-year-olds with no prior convictions from that statistic.  He submitted that this phenomenon was therefore rare.  Ultimately Mr McGarvie submitted that the appropriate sentence to impose upon you was a community corrections order.

Submissions: Jonah Reincastle

37Turning to you, Mr Reincastle, Mr Fink submitted on your behalf that whilst a term of imprisonment was likely in the absence of exceptional circumstances and that other sentencing principles such as denunciation and deterrence were relevant, the long-term protection of the community is best served by prioritising your rehabilitation.  Ultimately Mr Fink submitted that a combined term of imprisonment and a CCO was the appropriate order in this case and that time served on remand was sufficient to satisfy the first part of this order.  This was all the more so for the fact that your time was served in an adult prison and you had never previously been in prison before.

Crown submission

38The Crown position was that substantial and compelling circumstances that are exceptional and rare had not been made out in either case.  Mr Hartshorne acknowledged the desirability of achieving the rehabilitation of you both as young men but nevertheless submitted a period of confinement was warranted.

39In the course of discussion it became apparent that imprisonment in this case as required by the Act can be satisfied by confinement, which includes a period in a youth justice centre.  I ordered a suitability report be prepared in respect to both of you.  Ms Clark and Mr Dovey both agreed to prepare reports within a two-week period.

40Before turning to the reports and to my ultimate decision on sentence, it is necessary to further consider Mr McGarvie's submission.  As I have already observed earlier, the Sentencing Act requires me to:

•give less weight your personal factors and to the nature and gravity of the offending;

•to recognise that confinement is the usual sentencing course;

•but to also consider whether the cumulative impact of the circumstances would justify a departure from the usual course.

41It seems then that either individual factors or the cumulative effect of circumstances may constitute 'substantial and compelling circumstances that are exceptional and rare'.  In this instance it is of some assistance to consider what the words 'substantial and compelling' mean.  In their ordinary use, they are defined to mean a matter or matters of considerable importance that powerfully warrant attention.  'Exceptional and rare' in their everyday meaning are occurrences that are very unusual and very infrequent.

42When it is considered on its own, I cannot conclude that your youth, being 18 years of age at the time of the offending and even being 18 now, is a substantial and compelling circumstances that is exceptional and rare. As I discussed in the course of submissions made by Mr McGarvie, the fact of your age is a matter which qualifies you to be sentenced under these provisions and sentenced in accordance with this provision.  Put another way, if Parliament intends the Act to apply to people of your age, it is difficult to see that on its own it may constitute a substantial and compelling circumstance which is exceptional and rare.

43Of course, Mr McGarvie's submission is that it must be combined with the fact that you have no prior convictions.  It seems to me that these two factors are matters which are personal to you.  These are matters which the Sentencing Act says should not be given greater weight than the objective factors such as the nature and gravity of your offending.  That is not to say that such factors in cumulation perhaps with other factors could never satisfy the exception.  But what I am saying is here I am not satisfied that they should excuse you from the ordinary course of sentencing in this case.

44This is because when I undertake the consideration required by the Sentencing Act I must give factors personal to you less weight than matters such as the nature and gravity of your offending.  Overall, I am not satisfied in either case that the exception has been made out.  In both cases I therefore intend to proceed to impose a period of confinement on you.

45As I said, on the previous occasion I asked Youth Justice to provide me with reports assessing your suitability to be sentenced to a period of confinement in a youth justice centre.  In accordance with the provisions of the Sentencing Act it is necessary for me to be satisfied, that is to believe that there are reasonable prospects for your rehabilitation or that you are particularly impressionable, immature and likely to be subjected to undesirable influences in an adult prison.  I must also have regard to the nature of your offending and to your age, character and past history.

46I can say, and I assume you have all seen the reports, each report assesses you as suitable for a period of youth justice detainment. 

Jonah Reincastle report

47In the case of Mr Reincastle, the two considerations are that there are reasonable prospects for your rehabilitation and that you are particularly impressionable, immature or likely to be subject to undesirable influences in adult custody. 

48The report states that, in consultation with Ms Gough and Mr Roder, you have been assessed as suitable for detention in a youth justice centre; the rationale being that there are reasonable prospects for your rehabilitation, Mr Reincastle.  The report notes that you have taken full responsibility for the offence.  You pleaded guilty.  You acknowledged that your behaviour was largely motivated by significant historical drug use and financial reasons.  You expressed remorse for your behaviour, you have described your involvement in the offending as stupid and you have acknowledged the impact of the offending on the victim and the burden on his family. 

49It is noted that this was planned as a robbery, not an armed robbery, and the armed robbery aspect was instigated by the co-offender.  The report notes your response to supervision has been extremely positive.  It notes your wish to find gainful employment and to remain abstinent from drug use.  It notes your positive relationship with your parents and in the assessment of Youth Justice these factors, including your attitude towards offending, prosocial goals, your willingness and motivation to find and maintain full-time work, openness to engage in offence-specific interventions and strong familial and social supports bode well for your rehabilitation. 

50In terms of subjection to undesirable influences in adult custody the report notes that you were not the leader of the group, that you believed the matter was to be a robbery; it notes that you are not registered with disability services, you have no mental health concerns, and so those matters to me touch more on rehabilitation.  But it seems also, given your young age and your lack of prior convictions, that a further term in adult custody would not be of benefit to you.

Luke Bokos report

51For you, Mr Bokos, the report comprehensively sets out that in the writer's assessment all of the factors taken into account, including your attitudes towards your offending, your prosocial goals, your capacity to maintain full-time employment, which you have demonstrated, your openness to engage in offence-specific intervention and the strong family and community supports available to you bode well for your rehabilitative prospects. 

52Given your very young age, given your history of mental health issues, your symptoms of depression and anxiety, which act as contributors to your substance abuse, it is considered that your mental health issues would act to increase your vulnerability within an adult custody setting.  So again it is the opinion of Youth Justice that you are suitable because you meet both criteria and all other criteria.

53I must say I conclude that you both have good prospects for your rehabilitation.  I consider that whilst a period of adult custody is undesirable, I have formed the view that a period of confinement is necessary in this case.  Nevertheless I have taken a somewhat unusual step.  I have tempered the sentence of confinement that I intend to impose upon you because I am keen for you, Mr Bokos, to get back into the workforce and I am keen for you, Mr Reincastle, to get into the workforce, given that you have both expressed your strong desires to be in the workforce.  You both see working full time as a way of avoiding the antisocial behaviour you have been engaging in.

54So if I can ask you both to stand up at this stage.

55Mr Bokos, Mr Reincastle, on the charge of armed robbery you are both convicted and I sentence you to a period of detention in a youth justice centre for a period of nine months.  So in relation to Charge 1 and the summary charge for you, Mr Bokos, there's a period of nine month's imprisonment. 

56In your case, Mr Bokos, I take into account the fact that you have served one day of pre-sentence detention and that is reckoned as already served.  Mr Reincastle, in your case I take into account the fact that you have served 137 days pre-sentence detention and I reckon that period as already served.

57Forfeiture orders were sought and have been made in relation to the imitation firearm, although I would be surprised if it was not already sought for Zachary Homes.

58But for your pleas of guilty in this matter I would have sentenced you both to a period of imprisonment of 18 months with 12 months to serve. 

59Thank you very much, Mr Dovey.  Thank you for all your assistance and to Ms Clark for her work in this.  To the parents and family, thank you for your persistent attendance on this matter and for the support given to both young men.  I wish you both good luck going into the future. 

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