Director of Public Prosecutions v Remilton

[2016] VCC 358

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00610

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN BRIAN REMILTON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2016
DATE OF SENTENCE:	1 April 2016
CASE MAY BE CITED AS:	DPP v Remilton
MEDIUM NEUTRAL CITATION:	[2016] VCC 358

REASONS FOR SENTENCE
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Subject:  1 charge armed robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  3 years community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou
For the Accused	Mr M.D. Stanton

HIS HONOUR:

1Glenn Remilton, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is 25 years' imprisonment.  Your offending occurred on 2 June 2013.

2The circumstances of your offending are summarised in a prosecution summary dated 26 February 2016.  The summary was read to the court on the plea by the prosecutor, Ms Stylianou, and was accepted as being accurate and as forming a proper basis upon which I can proceed to sentence you by your counsel, Mr Stanton.  It is therefore not necessary that I here repeat in full what is there set out in the summary.  These sentencing remarks, however, need to be read in conjunction with what is set out in the prosecution summary which I marked as Exhibit A.

3On 2 June 2013, at about 2:49 am, you robbed the 7-Eleven store in Sunbury.  At the time you were armed with what was described by your victim as a large knife with a black handle which you partially concealed in the sleeve of your jacket.  The robbery was captured on closed circuit television.  The footage shows you wearing distinctive clothing and a motorbike helmet which were later traced to you.  You made no direct threat of harm but there was definitely an implied threat of harm.  That is why you had the knife.

4You were subsequently arrested and charged with this offence and other offences.  Between September 2013 and February 2014 there were a number of mentions in the Magistrates’ Court.  Those mentions involved all of the matters that you had been charged with.  There was a contested committal on 4 April 2014 and an initial directions hearing in this court on 7 April 2014.  
A final directions hearing was fixed for 16 February 2015 and a trial date of
20 April 2015 was fixed.  However, the trial date was later vacated for reasons that cannot be attributed to fault on your part.  A trial was later fixed for
1 February of this year but the matter resolved into a plea on 10 December 2015.

5The other charges apparently related to other allegations of armed robbery in separate incidents.  The prosecution had sought to charge all of the offending on one indictment.  The prosecution also apparently gave notice of intention to rely upon tendency and coincidence evidence so that the evidence of conduct in one charge became evidence of conduct in another.  Because the prosecution had stated that intention you did not indicate that you would plead guilty to the charge that you appeared before me in relation to until the prosecution withdrew the other charges.  When that was done you pleaded guilty.

6Whilst your plea of guilty was not made at the earliest possible opportunity, I understand why you did not do so.  I treat you as having pleaded guilty shortly before trial and notwithstanding that I regard your plea of guilty as valuable  By your plea of guilty you have saved the time and cost of a trial and, in all the circumstances which I have now been made aware of, I regard your plea of guilty as evidencing genuine remorse by you for your crime.  For these reasons you are entitled to a reduction in sentence because of your plea of guilty which I have taken fully into account as I must.

7You were born on 19 April 1976 and you are approaching your 40^th birthday.  When you were arraigned you admitted a lengthy criminal history.  You have been dealt with by courts in Queensland and Victoria.

8In Victoria you have a history dating back to 1993 (age 17).  Your offending includes dishonesty, motor vehicle and street type offences including a number of assaults.  This charge represents an escalation in the level of offending on your part.

9On 1 March 2013 you were dealt with in the Magistrates’ Court on two charges of driving whilst disqualified.  You were sentenced to a term of imprisonment of 42 days and that sentence was suspended with an operational period of two years.  This offending therefore occurred during the course of that operational period.  That is an aggravating feature.  In 2001 you were sentenced in the form of a community-based order for 12 months and the conditions indicate that your offending was related to your abuse of drugs and alcohol at that time.

10Your offending in Queensland appears to have been mainly of street type offences but there are indications in the criminal record that you were using drugs in that State also.

11I turn to other matters related to your background.  You were born in Melbourne and grew up in Sunbury and you were one of four children.  Your father was an alcoholic given to volatile discipline.  Your mother is a retired nurse.  Your father is now a reformed alcoholic and your parents currently live in Queensland.  You get along well with both of them and you enjoy their support.  I admitted into evidence a reference from your mother which refers to you having reformed your ways and efforts that you have made in recent times to rid yourself of drugs.

12You attended various schools in Victoria and commenced, but did not complete, year 10.  At that time you commenced drinking alcohol and using marijuana.  From age 16 to 18 you did not work.  You commenced but did not complete a TAFE course.  You have had various manual jobs but only on an intermittent basis.

13You resided in the family home until you were about 24 years of age.  At that time you commenced using heroin.  You moved to Queensland for about two years, later returning to Melbourne, again living in Sunbury with your parents.  It was then that you commenced using methamphetamine.  You subsequently moved to Cairns in northern Queensland with your parents.  At this time you undertook a hospitality course and worked in hotels and restaurants.  You return to Melbourne on your own when you were about 34 years of age and relapsed into methamphetamine use.  You were addicted to methamphetamine.

14Subsequent to this offending, on 11 July 2013 you were dealt with at the Magistrates’ Court at Ballarat.  You were sentenced for aggravated burglary and robbery offences and for breach of the suspended sentence.  The aggravated burglary and robbery charges resulted from your conduct on
23 June 2013 (21 days after this offending), when you demanded money and received $250 from a service station attendant.  You were sentenced to two months' imprisonment on the aggravated burglary charge and the suspended sentence was wholly restored.

15Whilst undergoing that sentence you were working in the dairy section of the prison when you were kicked in the chin by a cow which caused a hyperextension injury to your neck.  You suffered serious spinal injuries at C3/4 and C4/5 levels of your cervical spine which required two bouts of surgery and resulted in the fusion of your cervical spine at at least two levels.  You also had a laminectomy.

16This was undoubtedly a serious injury which will impact your enjoyment of life for the rest of your life.  I have read a number of the medical reports tendered and it is clear that you suffer from chronic pain radiating into your legs and arms.  It was obvious to me from your physical appearance in the court that you could not even sit comfortably in the dock for even a short period of time.

17You are presently in receipt of a disability support pension.  I have no doubt that whereas previously you could seek work of a manual kind or in truck driving these options are no longer available to you and because of the injury sustained by you whilst in custody your work prospects have been significantly affected.

18Your injuries were aggravated in a motor vehicle collision which occurred in September 2015, which resulted in you being further hospitalised in the Geelong Hospital.  One of the injuries at that time was that of a pulmonary embolism which was relieved.

19As a result of the injury sustained whilst in custody you require ongoing regular physiotherapy and you are taking a significant amount of medication both of the pain killing kind and to relieve your depression which has also afflicted you since you were injured.  I have concluded that because of your significant health issues a term of imprisonment for you would be far more burdensome than for a prisoner in normal health.  I was told and accept that because you were injured whilst in prison you are very anxious at the prospect of returning to prison and regard yourself as being very vulnerable in prison because of the nature of your injuries which would prevent you from being able to look after yourself or protect yourself.

20Since this offending you have formed a relationship with a woman who has two teenage children from a previous relationship and you also have a young child with her.  I received into evidence a reference from her in which she speaks highly of you as a de facto parent and father.  Her reference and that of your mother both provide evidence of the fact that since you were released from prison after being injured you appear to have become a reformed person.  I was told and accept that you no longer take drugs and you are only a modest drinker.  In part I think this has been forced upon you by the severe injuries you suffered and the ongoing residual problems from those injuries.  But also it seems that because of the relationship you have entered into with your partner and the responsibility foisted on you as a parent you have been motivated to change your ways.  That is a good thing and I have been persuaded that I should not interfere with the process of rehabilitation that you appear to have embarked upon.  On the evidence that I have seen your prospects for a full rehabilitation are probably good, although when considering a history of drug addiction, one must always be guarded.  I am somewhat comforted by the fact that you have the ongoing support of your family and your partner.

21As I indicated earlier there has been significant delay in the resolution of this matter which I must and do take into account.  The delay cannot be attributed to you and, importantly, during the period of the delay you have not reoffended and you have taken some steps to turn your life around.

22Armed robbery is a very serious offence as can be seen from the maximum penalty provided for by the parliament of 25 years' imprisonment.  Your offence was a serious example of what is a serious offence, although it must be said you did not make a direct threat.  In almost all cases a conviction for this crime will result in the  imposition of a term of imprisonment to be served immediately.  That is because the sentence is normally guided by appropriate application of the principle of general deterrence.  Also, in cases like this where the offender has a lengthy criminal history as you have, the sentence must reflect proper application of the principle of specific deterrence.  In cases such as this the sentence must also adequately reflect appropriate denunciation.

23The prosecutor submitted (properly in my view) that your offending is serious and calls for the imposition of an immediate term of imprisonment.  She conceded when pressed that a community corrections order was within the range of available sentences, provided that it followed the serving of a term of imprisonment.

24Your counsel submitted that the imposition of a Community Corrections Order with appropriate conditions should be made in this case.  In particular he relied upon:

·    your plea of guilty;

·    your expressions of remorse;

·    that you have not reoffended for a period approaching three years;

·    that you were severely injured whilst undergoing a sentence of imprisonment for a subsequent offence which has left you in chronic pain and somewhat disabled probably for the rest of your life;

·    that because of your injuries suffered whilst in custody a term of imprisonment would be more burdensome for you than for a prisoner in normal circumstances, in this regard he relied upon the fact that you will have difficulty even being comfortable much less looking after yourself in prison;

·    that you have formed a permanent and ongoing relationship with a partner who understands your past and is fully supportive of you;

·    that you have been drug-free for a period over two years and you have taken it upon yourself to rid yourself of drugs.

·    You have the ongoing support of your family.

25I accept the arguments that have been advanced on your behalf.  They are fully supported by the evidence.  Although this is serious offending I am of the opinion that each of the purposes of sentencing can be achieved by the making of a community corrections order with appropriate conditions.  That sentencing option being available to me in the circumstances of this case, I have decided that it would not be appropriate to send you to gaol.

26The order that I will make will provide that you are to undertake unpaid community work.  It may be that no suitable work can be found for you having regard to your ongoing physical disabilities.  That is a matter to be resolved by Corrections.  I make this part of the order because in my view having regard to the serious level of offending you have engaged in the community corrections order must have an appropriate punitive element to it.

27On the charge of armed robbery you are convicted and I make a community corrections order for a period of three (3) years with conditions that:

a)you carry out 250 hours unpaid community work; and

b)you be supervised by a community corrections officer; and

c)you undergo programs to prevent reoffending; and

d)you undergo assessment and treatment for drug addiction and consumption of alcohol; and

e)you undergo assessment and treatment for mental health.

28Pursuant to section 6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty to the charge I would have imposed a sentence in the form of a term of imprisonment of three and a half years and I would have fixed a non-parole period of two and a half years.

29The prosecution seeks a disposal order to deal with items seized from you. The making of that order was not opposed and I will sign it.

30Mr Remilton, Mr Stanton tells me that he has explained to you what a community corrections order means.

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  Is that right?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  You understand that?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  You must not commit any offence which is punishable by a term of imprisonment for the next three years, do you understand that?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR:  If you do you will be brought back before me and I will deal with you, do you understand that?

39OFFENDER:  Yes, Your Honour.

40HIS HONOUR:  You have got one chance from me.  One, do you understand?

41OFFENDER:  Yes, sir.

42HIS HONOUR:  You are about to embark upon it.  If you commit another offence and come back before me, I will send you to prison, do you understand?

43OFFENDER:  Yes, Your Honour.

44HIS HONOUR:  There will be a transcript kept of these proceedings.  I have got my own notes which I keep and I will remember this case.  Do you understand that very clearly?

45OFFENDER:  Yes, Your Honour, I do.

46HIS HONOUR:  Do you also understand that you must comply with all the conditions?

47OFFENDER:  Yes, Your Honour.

48HIS HONOUR:  Of the community corrections order.  That is, the work condition, attending for treatment for rehabilitation for drugs and alcohol and for mental health assessment and treatment.  Do you understand all of that?

49OFFENDER:  Yes, Your Honour, I do.

50HIS HONOUR:  You must comply with the directions of the community corrections order, do you understand that?

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR:  Are you still prepared to enter into the terms of the community corrections order?

53OFFENDER:  Yes, Your Honour, I am.

54HIS HONOUR:  Very well.  Just come out of the dock if you would please,
Mr Remilton.

55(Community corrections order signed and acknowledged.)

56(Disposal order signed and acknowledged.)

57Mr Remilton, the first thing that you have to do is attend at the Geelong Community Corrections Services.

58OFFENDER:  Yes, sir.

59HIS HONOUR:  Within two clear working days, so that will be Monday or Tuesday of next week.  Do you understand?

60OFFENDER:  Yes, Your Honour, I am going to that.

61HIS HONOUR:  Very well.  Otherwise, if you do not do that, you will get the community corrections order off to a bad start, a very bad start.  You have to do that and otherwise comply with the law.

62OFFENDER:  Yes, sir.

63HIS HONOUR:  Very well.  You are free to go.  I thank both counsel for your submissions.  Thank you.

64MR STANTON:  As Your Honour pleases.  Your Honour, I have a signed medical reference that I said I would provide on the last occasion.

65HIS HONOUR:  Thank you.  If you could just hand that to my tipstaff, thank you.

66MR STANTON:  As Your Honour pleases.

67HIS HONOUR:  I will just leave the Bench whilst the next matter is arranged.

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