Director of Public Prosecutions v Roberton

[2016] VCC 114

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01933

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE ROBERTON

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JUDGE:	HIS HONOUR JUDGE M.P.  BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Roberton
MEDIUM NEUTRAL CITATION:	[2016] VCC 114

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	Office of Public Prosecutions
For the Accused	Ms S. Duckett

HIS HONOUR: 

1Jesse Roberton, you are to be sentenced for one charge of armed robbery, one charge of possessing a drug of dependence, cannabis, and one charge of handling stolen goods.  The maximum sentences are 25 years' imprisonment for armed robbery, a fine of five penalty units for possessing cannabis (that would be somewhere in the region of $500-$600s) and 15 years' imprisonment for handling. 

2You pleaded guilty before me yesterday, 16 February.  When arrested on the day of your offending, 20 August 2015, you were not fit for police interview because of methamphetamine use. 

3The committal went by hand-up brief on 5 November, at which you entered a plea of guilty.  The matter was then listed for plea in this court.  You are to be sentenced only six months after your offences.  You receive the benefit of your plea of guilty and a high level of cooperation from an early stage.  I accept that you are remorseful.

4At your plea hearing, also yesterday, Ms Locke for the Crown tendered a written prosecution opening and a victim impact statement of John Boyce.  Ms Bate, for you, tendered a police photograph of you upon arrest, negative urine screen results taken in custody, certificates related to educational and rehabilitative programs in custody, the letter of Melbourne Remand Centre psychologist Alana Osborne, the letter of your grandmother, Leonie Hickey, and the forensic psychological report of Dr Aaron Cunningham.

5The circumstances of your offences are set out in the tendered Crown opening, which is Exhibit A.  My own summary may be short. 

6On 20 August of last year, at about 10.50 am, you robbed John Boyce, an 18-year old university student, in Racecourse Road, Flemington.  You did so holding, apparent to him, a Stanley knife.  You demanded and took his mobile phone and wallet which contained $300 in cash.  After you departed he called the police, and at about 11.15 am you were arrested at the nearby Newmarket railway station, affected by methamphetamine use and lack of sleep.

7As well as the property stolen from John Boyce, found on you were a stolen motor vehicle licence and car keys.  These are the subject of the handling charge.  Later in police custody you were found to possess a small quantity of cannabis.

8The  victim impact statement of John Boyce is an understated description of the effects of your offence upon him.  He suffers anxiety and hypervigilance, for example on public transport.  He had alighted from a tram soon before the robbery.  Other aspects of his life, including his social life, have been affected.  The victim impact of your offence must be taken into account in my sentence of you.

9You are a 24-year old man awaiting this sentence in remand custody.  You have now served about 180 days.  You have suffered a dysfunctional and traumatic early life.  Both parents were heroin users.  You witnessed and experienced drug overdoses by both and serious violence between them.  The family moved many times; I was told that you attended about a dozen primary schools.  In this setting you were primarily raised by your grandmother but left her care at about 14.  In such a family context you were introduced to drugs and alcohol early, beginning to use in very early teenage years.  You left school after Year 10 and have had little employment. 

10You began to use methylamphetamine at 18.  That escalated after the death of your mother by heart attack in September 2014; you found her.  I was told that you reached a 2 gram daily habit by the time of this offending.  Your father has rehabilitated from drug addiction.  He and your grandmother supported you in court.  You have a young daughter whom you do not see; however, you have ambitions of a relationship with her.

11Your criminal record states a number of court appearances, somewhat consistent I would find with the child and early adult life I have described.  Your first appearance in the Children's Court was in June 2010.  There are offences of dishonesty, violence, and drug offences.  You have not been sentenced to prison before.

12The psychological report of Dr Cunningham diagnoses post-traumatic stress disorder related to your early life experience and discovery of your mother.  Further psychometric testing revealed an IQ score of 72, placing you within the so-called borderline range of intellectual functioning.  He states that 97 per cent of a similar age in the community would do better.  A motor vehicle accident at 20 years caused a dislocated hip and broken nose.  You report memory effects but there has been no neuropsychological inquiry.

13Armed robbery is a serious offence attracting a maximum sentence of 25 years' imprisonment.  The circumstances of your offences and that you have a relevant and significant criminal history make relevant the sentencing considerations of deterrence, both general and specific deterrence, your moral culpability and the need to sentence in a way to state condemnation of the offending.  Your drug use and intoxication is not and was not put as a mitigation.  The proportionate punishment must at least include a period of imprisonment.

14However, there are also important moderating factors in your case.  They include the following.  (1) Your plea of guilty and cooperation.  (2) Your personal circumstances, which include your early life damage, psychological condition and your limited intellectual ability.  It was not put that the Verdins principles apply except perhaps related to the burden of imprisonment.  However, these matters are a relevant part of the personal context for your offence.  (3) At 24 you are still young and I must sentence bearing in mind prospects for and to encourage rehabilitation.  You have behaved in a positive way in prison and have family support.  Your chances of rehabilitation and a better life, perhaps including involvement with your child, depend very heavily upon your dealing with your drug dependency when released.

15It was put to me by Ms Bate that the appropriate sentence was imprisonment but not beyond what you have served, and in addition a Community Corrections Order addressing further punishment and your rehabilitation.  Ms Locke for the Crown, whilst pointing out the adverse aspects of your offence, did not argue against a sentence of imprisonment together with such an order. 

16That is what I shall do.  The sentence I impose will mean your  immediate release given declaration of pre-sentence detention and placement on a Community Corrections Order with what I see to be appropriate punitive and rehabilitative conditions.   Ultimately I see this as the proper sentence and one which I think is in the community's interest.  You are found suitable for such a Community Corrections Order.

17You are sentenced as follows.  Before I do that, I have presumed that a Community Corrections Order can be imposed on the cannabis charge, although it is not - - -

18MS LOCKE:  Yes, it can be, Your Honour.

19HIS HONOUR:  Yes.  I sentence you as follows.  On Charge 1, armed robbery, you are sentenced to 180 days' imprisonment.  On Charge 3, handling stolen goods, you are sentenced to two months' imprisonment.  I make no order for cumulation.  That is a total effective sentence of 180 days.  I declare 181 days of pre-sentence detention as already served.

20In addition, on those two charges and Charge 2, possession of cannabis, you are convicted and I impose a Community Corrections Order of two years' duration.  The usual conditions apply.  The additional conditions are that you perform 300 hours of unpaid work over that two years; that there be drug assessment and treatment as directed;  that there be alcohol assessment and treatment as directed; that there be mental health assessment and treatment as directed and that you attend other offending behaviour programs as selected and directed; that there be supervision of you and that there be judicial monitoring of you.

21He is liable for release immediately.  May he come out of the dock?

22CORRECTIONS OFFICER:  No, Your Honour.

23HIS HONOUR:  I think I will get him to come out temporarily whilst he does the paperwork and then he will have to be returned into custody so that the process can occur in that way.  The date for the judicial monitoring should be three months from today.  What date would that be?

24MS LOCKE:  It will be about 17 May, Your Honour, I'll check what day that is.  Your Honour, 17 May is a Tuesday.

25HIS HONOUR:  All right, that will be the date. 

26MS LOCKE:  Your Honour, would now be a suitable time to hand up copies of the orders?

27HIS HONOUR:  Yes, I need to make some other orders.

28MS LOCKE:  Three copies of the disposal order and three copies of the order in relation to the 464ZF.  I note that we have indicated the St. Kilda Police Station, which will be nearest to the address.

29HIS HONOUR:  Where will he be living?

30MS DUCKETT:  In Elwood, Your Honour.

31HIS HONOUR:  Thank you.   Had you not pleaded guilty I would have imposed a sentence of three years with a minimum term of 18 months.  I make those orders for disposal of the weapon and the stolen goods and the cannabis.

32COUNSEL:  If the court pleases.

33HIS HONOUR:  Whilst that is happening, I am making an order that you supply a sample of your saliva.  You do that by attending at the St. Kilda Police Station, the address is here, during a period of four weeks after four weeks from today.  So you have got eight weeks.  The reason why I am doing this is the seriousness of the offending, that you have prior convictions, and I understand that the order is not opposed.  It is in the public interest in the circumstances of this case that I make the order.  You do it by putting a cotton swab inside your mouth - I have not seen it but it does not sound intrusive.  If you do it cooperatively that is the end of it.  If you do not cooperate a blood sample may be taken by injection and reasonable force used.  Do you follow?

34OFFENDER:  Yes.

35HIS HONOUR:  I will sign that now.  Just stand up, I need to explain this order to you.  You will be released,  likely today,  on a Community Corrections Order which runs for two years until 16 February 2018.  The usual conditions are these.  That you do not commit another offence for which you could be imprisoned during the time that order is enforced.  That is a critical one for you because it is not like this, that you have to get prison before you come back before me; that is the result, you would come back before me.  But even possession of a very small quantity of methamphetamine is punishable by imprisonment, so that would bring you back.

36You must comply with what is called Reg.17 of the Sentencing Regulations.  That means that you do not attend any program or appointment under this order affected by alcohol or drugs or in possession of illegal drugs; that you must report to or receive visits from the Community Corrections people; you must report to the relevant Community Corrections centre within two clear working days of today - that would be of your release, which I am presuming will be today.  That is the Moorabbin Community Correctional Services at the Moorabbin Court, the address is here.  You must let Community Corrections know within two days of any change of address or job, you must not leave Victoria without first getting permission from them, you must obey all of their lawful instructions.

37The additional conditions are that you perform 300 hours of unpaid work over the two years; that you be under the supervision of Community Corrections; that you undergo assessment and treatment for drug abuse and for alcohol abuse; that you undergo any mental health assessment and treatment that they direct, and that you participate in programs related to your specific offending as they might direct. 

38Also, I think this is a case in which you should attend before me for judicial monitoring three months from today, 17 May 2016.  You will have to come to court and I will have a report to see how you are going.  I will get a report about two weeks beforehand.  If you are going all right you will not have to go in.  So if you hear you have to come in and see me, there is a problem; all right?  Can you do it, do you think?

39OFFENDER:  Yes, thank you, Your Honour.

40HIS HONOUR:  Do you understand that and do you agree to the order?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  All right.  I will get you to sign it, then I will sign it.  He must go back into custody to be processed.  I presume he will be processed and released today?

43CORRECTIONS OFFICER:  Yes, Your Honour.

44HIS HONOUR:  Thank you.  Does he need to go back to the Remand Centre or does he get released from here?

45CORRECTIONS OFFICER:  No, it's just downstairs.

46HIS HONOUR:  All right, thank you.  I will sign it now.  Thank you for your assistance yesterday and today.  Thank you for your assistance today,
Ms Duckett.

47COUNSEL:  As Your Honour pleases.

48HIS HONOUR:  You are both excused.

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