Director of Public Prosecutions v Ross
[2017] VCC 1832
•4 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARKUS ROSS (aka Dieter Beck) |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 June 2017 |
| DATE OF SENTENCE: | 4 December 2017 |
| CASE MAY BE CITED AS: | DPP v Ross |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1832 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms A. Bhai | Office of Public Prosecutions |
| For the Accused | Mr J. van Arkadie |
HIS HONOUR:
1 Markus Ross, you have pleaded guilty to one count of Armed Robbery. This offence carries a maximum penalty of 25 years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
3 Briefly, at 1.45 pm on 16 June 2016, you entered the Coles Express Store at Williams Landing. You selected a jerry can and black beanie and placed them on the counter for purchase. You asked for a packet of cigarettes and said you would like to prepay for some fuel. The victim was working alone behind the counter. You looked through your wallet and then produced a black handgun that had been concealed in your clothing. You demanded the victim give you all the money from the till. The victim placed the money in a bag and gave it to you. You asked where the cigarettes were and after the victim stated they were in the bag, you tapped the gun on the counter and the victim placed another packet of cigarettes into the bag. You then left the store.
4 You were arrested and interviewed on 15 September 2016. You made full admissions to the offending. You were released on bail.
5 Clearly, this is serious offending. You chose a soft target and you produced a black handgun to affect the robbery. The victim told the police that he thought it was a real gun. It must have been a terrifying experience for the victim.
6 With this offence great weight is given to the principles of general deterrence, just punishment and denunciation. It is usual for offenders to be imprisoned.
7 I accept that the offence was relatively unsophisticated. There must have been a level of planning because you had the gun in your possession and it was concealed. However, you wore no disguise and you wore no gloves. It was, as your counsel submitted, rash and amateurish.
8 There are a number of matters in mitigation.
9 You were 24 years old at the time of the offending and were, therefore, a relatively youthful offender.
10 Apart from an appearance in the Children’s Court when you were 15 years old for unlawful assault, you have no other history of violence.
11 Given these factors, rehabilitation is a relevant sentencing consideration.
12 You have pleaded guilty. The plea of guilty is an acceptance of responsibility and indicative of your remorse. Indeed, when the police interviewed you in September 2016, you made full admissions and stated that you were sorry for what you had done. The plea has also saved the victim from the stress of giving evidence and saved the community the costs involved in a criminal trial. You will be given credit for all of these matters.
13 On 9 August 2016, you were arrested for a number of summary offences that pre-dated the armed robbery. The majority of the offences were traffic related offences and were committed in 2014 and 2015. Drug abuse, most particularly methylamphetamine abuse, had become a significant problem in your life and this explains the outbreak of offending. It does not, of course, excuse the offending.
14 You were remanded in custody for 29 days from the time of your arrest until you were released on bail. That was your first time in custody and it had a salutary effect.
15 On 5 September 2016, you were assessed at the Visy Care Centre in Sunshine, for participation in the Youth Community and Law Program (YCLP). This is a pre-sentence program for young adults who have been referred by the Magistrates’ Court for additional support and supervision. You were released on bail to participate in that program.
16 In a report dated 16 September 2016, you were said to have shown motivation “to address the risk factors present at the time of the offending” and you were expressing a desire to engage and participate in drug treatment. You were referred to the Homeless Youth Dual Diagnosis initiative.
17
In a further report dated 21 December 2016, the Court was advised that you had engaged appropriately in the YCLP program and attended several drug treatment appointments. Given your cultural background you were referred to the Bunjilwarra Koori Youth Alcohol and Drug Healing Service (Bunjilwarra).
It was expected that you would enter that service for inpatient support in January 2017. The hearing in the Sunshine Magistrates’ Court was adjourned until 27 January 2017.
18
On that date, the Sunshine Court was advised that you had done well in starting to address your risk factors “through targeted youth specific interventions.”
The Court was advised that you had not attended the assessment for Bunjilwarra as “he no longer wished to attend rehabilitation as he felt it was more important to participate in the life of his young child.” As a result of that decision, you were referred for outreach support to Mr Wesley Price from the Victorian Aboriginal Health Service (VAHS).
19 The Magistrate at Sunshine finalised all charges and released you on an Undertaking to be of Good Behaviour with a special condition “to continue to engage with and follow any recommendation of the Victorian Aboriginal Health Service and attend any counselling suggested by them and provide proof of having done so.” You did not comply with that condition.
20 Fortunately, you have complied with the condition to obey the law. It appears that a number of factors combined to assist you to remain offence free. First, you had good support from your siblings. Second, you were determined to provide support to your young son. Thirdly, your mother, who is very ill, was admitted to a nursing home on 25 October 2016 and you wanted to support her. Finally, you were able to find casual employment. However, it remained the case that your past drug abuse had not been addressed because you had not attended the counselling that had been ordered.
21
When this matter came before the Koori Court on 5 June 2017, your counsel spoke about your positive progress after your release from remand.
He highlighted the matters I have just referred to and he urged me to defer sentence. I was persuaded to do so when I was told that you were now willing to enter Bunjilwarra.
22 Bunjilwarra is a 12-bed residential rehabilitation and healing service for Aboriginal young people. It is located in Hastings. It offers treatment for those with drug and alcohol problems. It helps develop living skills and strengthens cultural wellbeing. It also works on strengthening the young person’s connection to family, community and culture. It offers recreational, educational and vocational programs. In short, it offers the opportunity for a young person to address their drug or alcohol problem and focus on a life free from the harm that those substances cause. Participants generally reside at the facility for a period of three to four months.
23 When I deferred sentence I acknowledged that your decision to enter Bunjilwarra showed maturity on your part. I said that given your age and limited criminal history, it would be of enormous benefit to you if you were able to do well during the deferral period.
24 I adjourned the further hearing by way of deferral until today. I also arranged for the matter to be mentioned on 9 October 2017. I did so to confirm that you had, in fact, entered Bunjilwarra.
25
On 9 October 2017 I had a letter confirming that you had been assessed on
24 August 2017 and found suitable to enter the program upon completion of substance withdrawal. You entered the program on 11 September 2017. The letter confirming your admission explained how you had settled into the program in a positive fashion, that you were doing well and your drug screens were negative.
26 I now have a report dated 22 November 2017 that provides further advice on your progress. It is an outstanding report. It indicates that you have actively participated in all aspects of the program. You have been respectful of others and you have been a positive role model. You have been observed to be a “loving and attentive father “to your son on family visit days and you have completed a three week Mindful Parenting program facilitated by Headspace Frankston and Anglicare. You have been involved in casual employment two days per week and the feedback from your employer has been extremely positive. You have expressed a keen interest in continuing to attend Narcotics Anonymous meetings when you finish the residential aspect of the program.
27 Mr Ross, it is very much to your credit that you have participated so strongly in the Bunjilwarra program. It is also to your credit that you have remained offence free since your release from custody in early September 2016. These are matters that speak highly of your prospects for rehabilitation.
28 I am now going to say a little about your background.
29 You are 25 years old. You are one of eight children. You were raised by your mother and you have only had limited contact with your father. It cannot have been easy for your mother raising eight children. As I have already said, your mother is very unwell and is currently in nursing home.
30 I was told that you attended school to Year 11 and that after leaving school you completed a Certificate II in construction. You have worked variously in labouring, earthmoving and concreting roles. Clearly you are not afraid of hard work.
31 As a younger man you experimented with cannabis and some other drugs without an obvious detrimental effect. However, when you started to use ice in your early twenties, things went downhill. At the June hearing, your sister in law told the court that it was tough for her and her partner and their children to see you go from a “beautiful” young man to a drug addict. What she wanted was for you to get that “shining person back. “
32 It was obvious to all of us who sat in the court in June that you have strong support from your siblings. They stand by you and support your efforts to change your behaviour. This is another matter in your favour.
33 It is also significant that you have limited criminal history. It means that the sentencing principles of specific deterrence and protection of the community are not of consequence in this hearing.
34 You consented to the charge being heard in the County Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a “sentencing conversation.” The Court of Appeal in this State has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in the process is not easy. Indeed, it is challenging and your active participation in the process is a factor that mitigates punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
35 It was obvious to me from the way you participated in the Koori Court that you were sorry for what you had done and that you do have sound insight into the importance of remaining drug free. If you continue to remain drug free, your prospects of rehabilitation are excellent.
36 This is not an easy case. The offending is serious – in most cases of this type, a sentence of imprisonment is imposed. However, the matters in mitigation are powerful and, in the end, they have convinced me that it is in your interests and the interests of society to allow you to continue your positive rehabilitation under the direction of community corrections. The seriousness of the offending can be marked by the imposition of appropriate conditions.
37 Mr Ross, can you please stand.
38 You are convicted and placed on a community corrections order for a period of two years with the following conditions. You are to perform 275 hours of community work; you are to be under supervision for the period of the order; and attend drug treatment and rehabilitation programs as directed. You must attend the Frankston Office of Corrections by 4pm on 6 December of this year.
39 You can be seated there.
40 HIS HONOUR: Any ancillary orders, Ms Bhai?
41 MS BHAI: I was just about to make that application. There's an application for a forensic procedure. One was taken, as I understood, at the interview stage but not retained so there's an application. The basis of that application, Your Honour, is the seriousness of the offence, the nature of the offence and also Your Honour would see in the report that he's assessed as a medium risk of re-offending.
42 HIS HONOUR: Yes. So Mr van Arkadie, have you got any instructions on - - -
43
MR van ARKADIE: Your Honour, I briefly took instructions this morning and
Mr Ross does not oppose the making of the order.
44 HIS HONOUR: Mr Ross, if you could just stand again please. I am going to order that you undergo a forensic procedure. That procedure will be what is called a buccal swab. So it is just a matter of a cotton tip in the mouth for the taking of a sample.
45 OFFENDER: Yep.
46 HIS HONOUR: For the purpose of that occurring you have got to attend at the Frankston police station at 15 Fletcher Road, Frankston, within the next 56 days. I have been told that the people at Bunjilwarra will be able to facilitate that attendance so it is probably better that you go there sooner rather than later and get that done. It is not an onerous process and it will allow the police to keep a record of your DNA which would assist with the detection of future crime should you be foolish enough to ever do something wrong again. I am sure you will not but the serious nature of the offence means that the granting of this order is in the public interest.
47 I must also warn you that if you do not cooperate with the authorities in the taking of the sample then reasonable force can be use dot obtain the sample and the sample, in fact, can be a blood sample. Do you understand all of that?
48 OFFENDER: Yes, Your Honour.
49 HIS HONOUR: We will give you a copy of the order. I am now happy for you to step down and come and take a seat behind your counsel and we will print up the papers and get you to sign them. Now, Mr Ross, do you understand what has happened?
50 OFFENDER: Yes.
51 HIS HONOUR: It will have been explained to you that one of the standard conditions of community corrections order is that you cannot commit any further offences. So there cannot be any slippage now. No backward movement, no involvement in drugs, the focus for you is now on the future. Building a rewarding life for yourself. You want to be a youth worker, a leader to others, which is a very good ambition. So all you have got to do is get through the next two years, which is the period for which you have been made accountable for what you have done. Do the community work, attend the supervision, and attend whatever drug treatment you need to be engaged in. Just keep going in the really positive way that you have been going. Then you have got nothing to fear.
52 It is important you understand though, if you breach the order by re-offending, not attending appointments, not doing the things that are required under the order, you will be brought back to court on a breach and as you can imagine I would not be very happy because this has been such a good response by you, it would be incredibly disappointing if you let yourself down or those around you by doing the wrong thing.
53 But most importantly you cannot let down the elders who have participated in this process, Uncle Graham and Auntie Pam. Auntie Pam has been involved in this proceedings right from day one. You would break her heart if you mucked up from now on. So follow through on this really good progress. Anything else?
54 MR van ARKADIE: No, Your Honour.
55 HIS HONOUR: No, thank you.
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