Director of Public Prosecutions v Richards

[2015] VCC 518

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00048

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM RICHARDS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 April 2015
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2015] VCC 518

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	Mr G. Martin
For the Accused	Ms E. Turnbull

HIS HONOUR:

1Adam Richards; you have pleaded guilty to two indictments.  The first is D11909373, and on that indictment you pleaded guilty to an offence of armed robbery and an offence of possession of a drug of dependence.  The second indictment is C1510164, and on that indictment you pleaded guilty to two offences of criminal damage, one offence of burglary, three offences of theft, one offence of aggravated burglary, one offence of obtaining financial advantage by deception, three offences of attempting to obtain financial advantage by deception and one offence of possessing a drug of dependence.

2You also admitted three related summary offences on Charge 2; possessing a controlled weapon without lawful excuse, Charge 3; contravention of a condition of bail, and Charge 4; committing an indictable offence whilst on bail, and you asked for those matters to be taken into account in my passing sentence today.  You have also admitted a number of prior court appearances and convictions.  I note, for the sake of the record, that your pleas of guilty to the second indictment were tendered - apart from Charge 1 - by your signing a notice of intention to plead guilty to that and the remaining charges on the indictment.

3The prosecution tendered in respect of each indictment a separate prosecution opening for the plea hearing.  The first of those is Exhibit A and that is dated 2 March 2015, and was read when this matter came before me previously, and it sets out the circumstances of your commission of an armed robbery, which seems to me to be opportunistic in nature, but nonetheless vicious and frightening for the victim and his associate.  It also obviously identifies the facts relating to the second charge on the indictment, which involved your possession of a small quantity of methylamphetamine found in your pocket when you were spoken to by police.  When asked questions about those matters you made no comment to the questions put to you.

4In relation to the second indictment the prosecution tendered a plea opening, which is Exhibit B.  That sets out the facts relating to the separate offence.  I am not going to go into detail about them, save to say that the offending in relation to Charges 1 and 2 occurred on 1 May and 17 May of 2011, respectively, and the offences the subject of the remaining charges on the indictment occurred between 4 October and 1 November 2014.  It is noted in the opening that you were on bail with curfew conditions at the time that you committed the offences the subject of Charges 3 to 12 in the indictment.  I incorporate each of those exhibited summaries into these reasons for sentence in their entirety to save time, and to ensure that the full facts are incorporated into my reasons for sentence.

5These were serious offences, or at least a number of them were serious offences which would ordinarily attract a substantial term of imprisonment.

6Turning to matters personal to you.  Your counsel provided me with a thorough and informative outline of plea submissions which is Exhibit 1; a report from Warren Simmonds, psychologist, dated 18 February 2015; a letter from you, which is Exhibit 3, which puts your plea on your own behalf to me; a letter from the Department of Health and Human Services dated 29 January 2015, which is Exhibit 4, and a number of certificates from the Kangan Institute which show that you have been endeavouring at various times to make good use of your time whilst you have been on remand.  You have, of course, now been on remand for a total of 470 days.

7There is clear evidence that you have an intellectual disability.  Your counsel invites me to take that into account pursuant to Verdins principles in reduction of the moral culpability that is to be attributed to your criminal conduct and to the need for general deterrence, or to hold you up as an example of general deterrence.  Also, of course, it is to be noted that anybody with those kinds of disabilities is going to find serving a term of imprisonment harder and accordingly all of those matters combine together to produce a sensible moderation of sentence in relation to each of these offences.

8You, of course, pleaded guilty, and you are entitled to full credit for your plea - and that is consistent with remorse - and there is evidence of your remorse and I accept that you are remorseful.  Your criminal record and this series of offences suggests that your prospects of rehabilitation have to be considered to be moderate at best.  However you are still a young man and the courts are most concerned to avoid the situation where men of your age become institutionalised and beyond rehabilitation.  To the extent that rehabilitation may be possible and the assistance of the Department of Health and Human Services is likely to have most benefit whilst you are still a young man.  The community can be, and hopefully will be, best protected by rehabilitating you and trying to set you on a path of a more productive and honest life.  Principally for those reasons your counsel submitted that I should consider imposing a community corrections order - or community corrections orders - with a condition that you participate in a justice plan.  That would be attached to a term of imprisonment, but the submission was that the time you have already served should be regarded as sufficient in all the circumstances.

9I therefore had you assessed for the purposes of pursuing that option, and as was pointed out yesterday the court is now in possession of both a client overview report from the Department of Health and Human Services and a justice plan.  It is clear, it seems to me, on reading of the client overview report, that the option put forward by your counsel is the right one to pursue at this time.

10What I have in mind, Mr Richards, is to make a community corrections order; to sentence you to a term of imprisonment of 470 days and declare the 470 days you have already served as time served on that sentence, which would mean that you would be eligible for immediate release, but also to make community corrections orders in relation to each indictment so that you would be subject of those orders for a period of three years on the condition that you comply with the terms of the order, and with the justice plan, and participate in the justice plan.

11That is going to cause you a good deal of inconvenience.  You will be required to report where you are told to report, to participate in programs that are set out for you, and you also have to stay out of trouble, because if you get into trouble - that is commit an offence punishable by imprisonment - then you will be in breach of the order for that and you would be up for up to three months for the breach and any punishment that was imposed for the offence that put you in breach, plus, of course, you would be brought back here for the purposes of being sentenced for all these offences on these two indictments.  If that happens you are going to leave the court with virtually no option other than to impose a pretty heavy term of imprisonment, because armed robberies and aggravated burglaries are very serious offences and the courts have to take steps to protect the community, and you would leave the court with no option other than to impose a substantial term of imprisonment.

12You have got to be willing to comply with the terms of the order and I cannot make the orders unless you consent to them.  No doubt you have been through the proposed justice plan with your counsel, Ms Turnbull.  No doubt you went through that with the people from the Department of Health and Human Services, so do you understand what is going to be required of you?

13OFFENDER:  Yes, I do.

14HIS HONOUR:  You do?  All right.  And are you willing to consent to being placed on a community corrections order for a period of three years?

15OFFENDER:  Yes.

16HIS HONOUR:  And are you willing to give it a real crack?  That is, try very, very hard indeed to comply with the terms of the order?

17OFFENDER:  Yes.

18HER HONOUR:  All right.  Well, in those circumstances I will proceed to impose sentence upon you.

19On the first indictment - that is the one ending in 373 - on Charge 1 of armed robbery I impose a sentence of 470 days.  On Charge 2; possessing a drug of dependence, I sentence you to seven days' imprisonment.  On each charge I also convict you.

20On the second indictment - on Charge 1 I convict you and sentence you to imprisonment for 28 days.

21On Charge 2, of a similar nature - that is criminal damage - I convict you and sentence you to imprisonment for a period of 28 days.

22On Charge 3, of burglary, I convict you and sentence you to imprisonment for a period of 365 days.

23On Charge 4 of theft, I convict you and sentence you to imprisonment for a period of 184 days.

24On Charge 5 of theft, I convict you and sentence you to imprisonment for a period of 200 days.

25On Charge 6 of aggravated burglary, I convict you and sentence you to imprisonment for a period of 470 days.

26On Charge 7 of theft, I convict you and sentence you to imprisonment for a period of 184 days.

27On Charge 8 of obtaining property by deception, I convict you and sentence you to imprisonment for a period of 184 days.

28On Charge 9 of attempt to obtain property by deception, I convict you and sentence you to imprisonment for 90 days.

29On Charge 10, involving a similar offence, I convict you and sentence you to imprisonment for 90 days.

30On Charge 11 of attempted deception, I convict you and sentence you to imprisonment for 90 days.

31On Charge 12 of possessing a drug of dependence, I convict you and sentence you to imprisonment for seven days.

32In relation to the summary charges - on Charge 2 of possessing a controlled weapon, I convict you and sentence you to imprisonment for 30 days.  On Charge 3 of contravening a condition of bail, I convict you and sentence you to imprisonment for 14 days.  On Charge 4 of committing an indictable offence whilst on bail, I convict you and sentence you to imprisonment for a period of 14 days.

33All of those sentences will be served concurrently - that is together - making a total effective sentence of 470 days.  I declare pre-sentence detention of 470 days as time to be reckoned as served from the sentences that I have just imposed upon you.

34But for your pleas of guilty to these offences I would have sentenced you to imprisonment for a period of five years with a non-parole period of three years.

35That just gives you some idea of what might be in store for you if you breach this order, all right?  I make the ancillary orders.  Sorry, before I do that, in relation to each of the charges on each of the indictments - and indeed the summary charges - I make a community corrections order.  If I need to make two then I will make two, but I think one should cover it - for a period of three years, which will commence today.

36The first condition will be that you will be required to report to Sunshine Community Corrections Centre.  You will be required to report there within two clear working days.  It is important that you do, because if you fail to do that then you are in breach of the order straight away and you will be in strife, so it is important that you keep that appointment.  Make the appointment as quickly as you can and go there and get that out of the way, and then basically do as they tell from then on.

37In addition, I will make the order for you to provide a forensic sample, and that will require you to report to the officer in charge at the Sunshine Police Station.  I will fill these in in a moment, or at least during the rest of the day, and let you have them, I think, rather than do it on the hoof now.  So you will be required to report to the officer in charge of the Sunshine Police Station essentially within 28 days of today, and when you get there you will be required to provide a scraping from the inside of your mouth.  If you do that, that is not a problem and that is all you are required to do.  If, however, you, when requested by the authorised officer at the police station for you to provide your DNA in that form, fail or refuse to do so, the officer will be authorised to take blood from you and may use reasonable force to do that, and I am quite sure that you will not put them to that kind of trouble.

38Also, I make the order for disposal in accordance with the draft that I have been provided with.  Was there any other order apart from the disposal orders?

39MR MARTIN:  There should be two disposal orders, Your Honour.

40HIS HONOUR:  Yes, I think I have only got one.

41MR MARTIN:  There's one that was handed up back in March and then one I emailed through to your associate yesterday afternoon.  I have copies if Your Honour ‑ ‑ ‑

42HIS HONOUR:  Could you give me some - yes, better give me some copies.  I've probably got them but they're probably buried under some of these papers somewhere, but I will fill them in in the next 12 hours and let you have them.  I think one can be posted to your client or through you, perhaps, Ms Turnbull?

43MS TURNBULL:  Yes, Your Honour.

44HIS HONOUR:  Are there any other orders that I need make?  Is that it?  All right.

45You will have to be processed downstairs, obviously, Mr Richards, but hopefully - sorry, we have got to sign the community corrections order.  I apologise, take a seat for the moment.  Ms Turnbull, perhaps you will be kind enough when we get the order to accompany my associate for the signing ceremony and make sure your client understands what he is being asked to sign?

46MS TURNBULL:  Yes, Your Honour.

47HIS HONOUR:  There will be two orders, I think that is the way it has come up.  One order in relation to each indictment, of course.  They will run concurrently and they are essentially in the same terms.  They look fine, thank you.  Those orders are now in place and I hope that you get some benefit from it.

48OFFENDER:  Yes.

49HIS HONOUR:  Right, thank you.

50MS TURNBULL:  As Your Honour pleases.  They do normally sign three, Your Honour?  Copies of that order.

51HIS HONOUR:  Normally three?

52MS TURNBULL:  Coincidentally.

53HIS HONOUR:  Yes, all right.

54MS TURNBULL:  I don't know if copies are sufficient for Corrections or not but they do normally sign three.

55HIS HONOUR:  Yes, I think I only sign one?

56MS TURNBULL:  Yes, sir.

57HIS HONOUR:  But they're simply photocopied.

58MS TURNBULL:  Yes, sir.

59HIS HONOUR:  Is that satisfactory?

60MS TURNBULL:  If it's satisfactory for Your Honour it's satisfactory for everybody, I would've thought?

61HIS HONOUR:  I think so, yes.  So we'll supply you with a photocopy.

62MS TURNBULL:  Thank you, sir.

63HIS HONOUR:  Now, Mr McLachlan, you're here?  Yes, and Ms Breckweg is here too, yes.  Thank you.

64MS TURNBULL:  May I be excused?

65HIS HONOUR:  Yes, you're both excused.

66MS TURNBULL:  Thank you, sir.

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