Director of Public Prosecutions v Rowe
[2015] VCC 1789
•8 December 2015
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-01365
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN ROWE |
---
| JUDGE: | HIS HONOUR THE CHIEF JUDGE KIDD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 November 2015 |
| DATE OF SENTENCE: | 8 December 2015 |
| CASE MAY BE CITED AS: | DPP v Rowe |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1789 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Offender | Mr D.Cash | Doogue O’Brien George |
HIS HONOUR:
1Steven Rowe, you have pleaded guilty on 12 November 2015 in this court to one rolled up charge of armed robbery in Indictment F10706749. The maximum penalty for the offence of armed robbery is 25 years' imprisonment. Mr Cash appeared on your behalf at the plea and Mr Roper appeared on behalf of the Director. You are a young offender who is currently aged 20 having been born on 16 December 1994 and was so at the time of this offending, such offending having occurred on 29 January 2015.
SUMMARY OF OFFENDING
2I move to the summary of your offending. This offending is detailed in Exhibit A, a summary of the Prosecution Opening and chronology, which was accepted by your counsel as representing the facts upon which I am to sentence you, Mr Rowe.
3At 9.00 pm on 29 January 2015 you, along with two males and one female, went to the Jacana Skate Park. You had with you a pair of red bolt cutters. Jack Devitt, Anna Diaz and Charlotte Raymond were at the skate park practicing on a tightrope and unicycle. You and your group were talking among yourselves and drinking beer.
4Devitt decided to leave the skate park and was in the process of packing up the tightrope when you and one of the other males approached him with the bolt cutters saying "Sorry, we're going to have to take all your stuff. Phones, wallets, money". Devitt and Diaz handed over their phones and some cigarettes to the other male. You then became aggressive because the items had not been handed over to you saying "Tell him to give the phones or you're going to get bashed" while swinging the bolt cutters at Devitt, though there was no attempt to strike him. Devitt then asked the other male to hand the phone over to you, which he did. The victims then took their other belongings and quickly walked away before contacting the police to report the incident.
5You were arrested some four weeks later on 26 February 2015 and interviewed at Broadmeadows police station at which time you made no comment, as is your right. You have been in custody since that time.
CRIMINAL HISTORY
Priors
6I now turn to your criminal history, Mr Rowe. Despite your young age you have a significant criminal history. Significantly you have a prior conviction for robbery in October 2013 for which you received a Community Corrections Order for a period of 24 months, which you then breached by further offending less than one year later. That robbery was committed by you in company while you were affected by alcohol against six victims who were passengers on a train.
7In relation to the further offending committed during the Community Corrections Order you were convicted on 14 May 2014 of contravening a condition of bail and committing an indictable offence whilst on bail alongside other charges including aggravated burglary, theft, criminal damage and others for which you received seven months Youth Justice detention.
8On 12 August 2014 a breach of the condition of the initial Community Corrections Order was found proven and no further action was taken. The Community Corrections Order was cancelled. On that day you were also convicted and fined for theft from a shop and handling stolen goods.
9On 1 September 2014, you were released on Youth parole. Your Youth parole expired on 19 November 2014.
Subsequents
10On the same day of this offending for which I now pronounce sentence, that is 29 January 2015, you committed and were charged with burglary, theft and committing an indictable offence. The offending occurred while you were on bail. You were sentenced on 1 April 2015 to six months' Youth Justice detention. The principle of totality must be applied when I sentence you for the current sentencing and I will return to that.
11You have some subsequent matters. You were sentenced in relation to further matters on 11 June 2015 at the Heidelberg Magistrates' Court. You received 14 days Youth Justice detention, the offending for which you were sentenced on that day included theft and other dishonesty charges committed while you were on Youth parole between September 2014 and November 2014 and criminal damage and unlawful assault charges committed on 4 January 2014 while you were on your 24 month Community Corrections Order.
OBJECTIVE GRAVITY OF OFFENDING
12I turn to the objective gravity of this offending. Unfortunately at the time of this offending, as I said, you were on bail. That undertaking having been entered into on 13 November 2014 when you were charged with handling stolen goods. The learned prosecutor submitted that this offending is aggravated by virtue of you being on bail. The offending also occurred only a few months after you completed Youth parole.
13There were two victims, Devitt and Diaz. The victims were soft targets in a public place and the armed robbery was committed in company. The weapon, bolt cutters, was menacing. Mr Cash, your counsel on your behalf conceded from the outset that this was serious offending for which principles or the principle of specific deterrence was a relevant consideration. Further it was conceded that the fact that you were on bail at the time of this offending is an aggravating factor.
14However Mr Cash submitted that although the offending was serious the offending was not at the higher end of the scale in terms of objective seriousness and the offending was not highly confrontational in that you did not attempt not attempt to strike the victims. Mr Cash further submitted that the offending was opportunistic, occurring at a time when you were affected by alcohol and lacking in any planning. I accept those submissions. Armed robbery is always a serious offence but this one is towards the lower end of the scale.
VICTIM IMPACT STATEMENTS
15I turn to the victim impact statements, in particular from the two victims. The victim impact statements, Exhibit B, of Devitt, Diaz and Raymond were tendered and read by the prosecutor at the plea. Devitt and Diaz being the actual two victims of your crime. Coming first to that of Devitt, declared on 4 November 2015, he states,
"As a result of this crime I now live in fear and I am constantly worried for my well-being. I feel unsafe in my local area".
16He also expresses his fears for his family and feeling depressed as a result of no longer being able to go to the skate park. As to the financial impact, he took a week off work after the crime and lost his mobile phone.
17The victim impact statement of Diaz declared on 6 November 2015 describes being "struck with paralysing fear" and "feeling helpless, shock and intense fear" on the night of this crime. She describes the impact of this crime as living in constant fear stating,
"I can no longer go out in the evening without the fear of this incident repeating itself".
PERSONAL MATTERS
18I now turn to some personal matters put by your counsel at the plea,
Mr Rowe.
Plea of guilty
19The plea of guilty. You were committed to this court on 10 August 2015 after a contested committal and indicated a plea of guilty on 24 August 2015 at a further initial directions hearing. It was submitted by your counsel that your plea of guilty, although not strictly entered into at the earliest opportunity, is early and that by your plea you have assisted in the administration of justice by avoiding a trial and admitting your guilt. I accept that.
Family support
20Insofar as your family support is concerned at the plea you were supported in court by your mother, sister and sister's boyfriend. Your father was unable to attend for medical reasons. Prior to being remanded for this offending you were living with your parents and sisters in Broadmeadows. You have strong family support and I take that into account.
Background
21As far as your background is concerned it was outlined in a psychological report of Jeffrey Cummins, psychologist, dated 9 November 2015, which was tendered on the plea as Exhibit 3. The report of Jeffrey Cummins at paragraphs 9 to 10 outlines your background, which I will briefly summarise.
22You attended Meadowfair North Primary School and then attended at Gladstone Park Primary School for 12 months after which you were expelled. You then took a year off school before attending Hume Secondary College before leaving school at age 16. You then completed Certificates I and II in automotive studies at Kangan Batman TAFE in Coburg before working as a container labourer for two years.
23Around this time you became involved with Mission Australia. Prior to this offending you were undertaking a panel beating apprenticeship which had only just commenced. You hope to pursue this vocation upon your release. There is evidence of a good work ethic, which I take into account.
Totality
24I mentioned before that the principle of totality has significant application in your case. You have been in continuous custody since you were arrested for these matters on 26 February 2015. Only a portion of this approximate nine month period is attributable to the armed robbery before me. This is because you were serving the six month Youth Justice sentence during that period for offending that occurred on the very same day as this offending. You were in custody between 1 April 2015 and 9 August 2015 in relation to that matter.
25The offence that you committed for which I propose to sentence you and also the other matters committed on that day were all committed as part of a course of conduct, as was put by your counsel on the plea.
26In short that offending involved you and an unknown offender committing a burglary upon Hume Secondary College where you stole $500 worth of equipment and the master keys to the college. This occurred at about
8.40 pm. You were captured on CCTV footage. From there you proceeded to Jacana Skate Park where at 9.00 pm you committed the armed robbery in respect of which I will impose sentence. I need to consider the total sentence that would have been imposed had all these offences, fallen for consideration on the same occasion.27I also take into account that during your time in custody you were also serving 14 days Youth Justice detention for further matters which sentence was passed on
11 June 2015 at the Heidelberg Magistrates' Court and I have already made reference to that.28I take the principle of totality into account.
Onerous conditions on remand
29You have been at the Metropolitan Remand Centre since August 2015 having being transferred there upon completion of the Youth Justice component of your detention which I referred to a moment ago. Mr Cash, your counsel, submitted that your time in custody at the Metropolitan Remand Centre has been difficult owing to the 23 hour lockdown and further given your young age. I take that into account.
Psychological difficulties
30Turning now to your psychological difficulties and your alcohol and substance abuse. At paragraph 18 of his report, Mr Cummins outlines your relationship with alcohol stating,
"He started drinking alcohol at age 15 and said alcohol would have been a problem for him from age 18 onwards".
31Further at the time of this offending you were drinking alcohol daily to the point you were getting "smashed' every day at least six or seven cans. At paragraph 19 you reported daily cannabis use of typically one gram per day from the age of 16 unit your arrest in January this year. You reported experimenting with methylamphetamine and having used one point of methylamphetamine on three or four occasions.
32At paragraph 33 Mr Cummins concludes,
"In my opinion Mr Rowe requires treatment in relation to his dependency on alcohol and cannabis and also in relation to anger management".
33Your difficulties with alcohol especially were advanced by your counsel as an explanation for your offending, not as a mitigating factor. In his report Jeffrey Cummins expressed the opinion that you had difficulties in making a smooth transition from an adolescent to being a young adult and that at the time of the offending you had a dependency on alcohol and cannabis and you were suffering from symptoms of adjustment disorder, anxiety and depression.
34Your counsel expressly disavowed any reliance upon the principles in Verdins or upon your intoxication as a mitigating factor. Nevertheless I was asked to take Mr Cummins' opinion into account in a general way as matters personal to you, which I do. They also assist in providing some explanation for the offending and the need for a sentencing disposition to address your alcohol problem.
35As I understand it, your conditions are relied upon to support the submission that the offending was spontaneous and opportunistic with little thought. Further, that if you can address some of your underlying problems, including your alcohol issues, you can reform. I take these matters into account.
Remorse and insight
36I turn to the issue of remorse and insight. It was submitted by your counsel that your plea of guilty indicates some remorse for your actions, though he frankly accepted that it was "not the strongest form of remorse". I accept that you have shown some remorse, though it is limited. Some of your thoughts are better characterised as regret about your personal circumstances rather than genuine remorse. You appear more concerned about the impact of this offending on your own employment and education rather than any impact upon the victims. As Mr Cummins said of you at paragraph 23 of the report, that interview,
"He acknowledged feeling angry with himself for committing the armed robbery and for potentially jeopardising his apprenticeship. He had a poorly developed sense of victim empathy and gave the impression he thought the victims would have known he would not have assaulted them with the bolt cutters. Nonetheless he did acknowledge the victims would have felt frightened".
37Even in the Youth Justice pre-sentence report, which I will come to in a moment, you maintained that your behaviour was not threatening in manner.
Prospects of rehabilitation
38In relation to your prospects of rehabilitation your counsel, Mr Cash, submitted that although your prospects were not great there were some encouraging signs of rehabilitation. Mr Cash took me to the circumstances of the offending occurring at a time when you had many positive factors in your life. You were living with your supportive family, you were enrolled at Kangan Institute, you had a good job opportunity and were engaging with Mission Australia.
Mr Cash submitted that clearly there is a link between alcohol and your offending and that your prospects of your rehabilitation are dependent upon you getting a handle on your issues with alcohol.39Unfortunately you committed this armed robbery despite the positive factors in your life at the time. There are some indications that you are beginning to appreciate your alcohol problems and the link to your offending, though your counsel realistically accepted you are still lacking full insight in relation to your alcohol problems.
40The Youth Justice pre-sentence reports confirms that your insight into your behaviour is limited noting that you have continued to abuse alcohol and substances despite being afforded numerous opportunities for rehabilitation.
41Your prospects of rehabilitation are not great, even at the age of 20. I say that given your prior history, which is relevant and significant, your repeated failures to comply with court orders, including your offending on bail on this occasion, your failure to take advantage of the rehabilitative opportunities provided to you and your limited insight and remorse. You are, as Mr Cummins says in his report, at the crossroads in terms of opportunities for rehabilitation.
42However, if you address your substance and anger management issues you have the potential to reform and become a contributing member of society. You are a young man. You maintained in your interview in the Youth Justice pre-sentence report that you have had enough of being locked up and want to stop offending. You have strong family support and have shown in the past a preparedness to enjoy and pursue a vocation. You have used your time in custody productively to engage in studies and according to the material placed before me, including the report of Mr Cummins and the Youth Justice pre-sentence report, there is some acceptance on your part of the role which alcohol has played in your offending. The real question which remains is whether you are now prepared to tackle your alcohol and anger management problems.
Young offender principles
43The youth, or youthful, principles apply and I make reference to the decision of Azzopardi v R (2011) 35 VR 43. However you are obviously not a first time young, or youthful, offender and your prospects of rehabilitation and remorse, as I said, are somewhat limited.
44Specific deterrence is a significant sentencing consideration in your case as your counsel acknowledge. The mitigating effects of youth in your case are moderated.
45General deterrence and denunciation remain relevant considerations for offending of this nature, as does protection of the community.
46Mr Rowe, your criminal history, despite your age, limits the options available to this court. In your case a custodial sentence is required to meet all of the relevant sentencing considerations. Indeed your counsel did not dispute that a period of detention was warranted.
Type of custodial disposition
47The issue before this court is whether you should serve the period of detention in adult custody or in a Youth Justice centre and the matter was adjourned on that basis. Your counsel asked that you be assessed for Youth Justice detention. The prosecutor, Mr Roper, submitted that such a disposition would be within range should you be assessed as suitable.
48I ordered that you be assessed for a Youth Justice sentence order with the matter being adjourned for such report to be prepared. You have been assessed as unsuitable. You are not considered to be vulnerable in the adult system and you are considered to be a poor prospect for rehabilitation. I will not attempt to summarise all the reasons advanced by the author of the report for these conclusions but in short they are:
·Your prior history and your repeated failure to comply with court orders.
·Your failure to meaningfully engage with Community supports put in place to assist you with the underlying conditions contributing to your offending, and
·Your behaviour in Youth detention has been problematic.
49Having regard to all the material before me, including your prior history, and the contents of the Youth Justice pre-sentence report I have concluded that Youth Justice detention is just not appropriate for you. You do not meet the conditions under s.32(1) of the Sentencing Act.
50Your counsel submitted in the alternative that should I conclude that Youth Justice detention is inappropriate I should consider imposing a relatively short further term of imprisonment followed by a Community Corrections Order which could be directed at your alcohol, substance and anger management rehabilitation.
51I directed today that you be assessed for such an order. You have been assessed as suitable. I will still fashion and moderate the sentence I impose on you as much as I can in light of your youth and so as to facilitate what prospects of your rehabilitation that you do have. I intend to impose a term of imprisonment followed by a Community Corrections Order.
52Mr Rowe, I propose to sentence you to the following. On Charge 1 I propose sentencing you to a term of imprisonment of nine months and a Community Corrections Order of two years commencing on your release on completion of the term of imprisonment. But I can only impose that Community Corrections Order with your consent. So I will explain the conditions.
53First, you will need to comply with the conditions provided by s.45 of the Sentencing Act. They are, in summary, the following. You must not commit, whether inside or outside Victoria, during the period of the order an offence punishable by imprisonment. Most offences are punishable by imprisonment, Mr Rowe. Two, you must comply with any obligation or requirement proscribed by the regulations and that will be explained to you. Three, you must report to and receive visits from the Secretary or otherwise known as the Office of Corrections during the period of the order. So you must report to and receive visits from the Office of Corrections during the period of the order. You must report to the Community Corrections centre specified in the order within two clear working days after the order comes into force. I think the order nominates the office to be at Broadmeadows. Next, you must notify the Office of Corrections of any change of address or employment within two clear working days after the change. You must not leave Victoria except with the permission from the Office of Corrections and you must comply with any direction given by the Office of Corrections that is given to ensure that you comply with this order.
54In addition to those general orders that you must comply with, I also intend to impose the following additional conditions. Pursuant to s.48D(3)(a) of the Sentencing Act you are to undergo assessment and treatment including testing for drug abuse or dependency as directed by the Secretary to the Department of Justice and that is, again, Mr Rowe, that is effectively another name for the Office of Corrections.
55Two, that pursuant to s.48D you are to undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Secretary, that is, the Office of Corrections.
56Three, pursuant to s.48D you are to undergo mental health assessment and treatment as directed by the Secretary or the Office of Corrections.
57Four, pursuant to s.48E of the Sentencing Act you are to be supervised, monitored and managed as directed by the Secretary or Office of Corrections. As I understand it you would be supervised by the Broadmeadows office. So you would have to comply with any lawful direction that they give you,
Mr Rowe.58Mr Rowe, do you consent to the terms and conditions of this proposed Community Corrections Order?
59OFFENDER: Yes.
60HIS HONOUR: All right. Perhaps if you can remain standing. Mr Rowe,
I sentence you to the following.61On Charge 1, you are convicted and sentenced to a term of imprisonment of nine months and a Community Corrections Order of two years commencing on your release on the completion of the term of imprisonment on the conditions provided for by s.45 of the Sentencing Act and the following additional conditions.
62Those additional conditions are:
(a)pursuant to s.48D(3)(a) of the Sentencing Act you are to undergo assessment and treatment including testing for drug abuse or dependency as directed by the Secretary to the Department of Justice who I shall refer to as the Secretary.
(b)Pursuant to s.48D(3)(b) of the Sentencing Act you are to undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Secretary.
(c)Pursuant to s.48D(3)(e) of the Sentencing Act you are to undergo mental health assessment and treatment as directed by the Secretary; and
(d)Pursuant to s.48E of the Sentencing Act you are to be supervised, monitored and managed as directed by the Secretary.
63Pursuant to s.18 of the Sentencing Act I declare 154 days of pre-sentence detention, not including today, which is to be deducted administratively as service of this sentence which I have imposed upon you.
64Pursuant to the provisions of s.6AAA of the Sentencing Act had you not pleaded guilty I would have sentenced you to a period of imprisonment of 15 months with a three year Community Corrections Order.
65You can sit down, Mr Rowe. Is there anything else?
66MR ROPER: Nothing further, Your Honour.
67MS CASH: Nothing further, Your Honour.
68HIS HONOUR: Excuse me.
69MR CASH: Your Honour, may I approach the dock?
70HIS HONOUR: Yes, please.
71MR CASH: Thank you, Your Honour. Nothing arising.
72HIS HONOUR: All right. There was one other condition that I did not read out which is part of the Community Corrections Order. That is pursuant to s.48D(3)(f) in relation to offender behaviour programs, that Mr Rowe undergo assessment for programs or course aimed at addressing factors relating to his offending and participate in such programs or courses as directed by the Office of Corrections. Mr Rowe, do you consent to undergoing that condition as well?
73OFFENDER: Yep.
74HIS HONOUR: I add that condition to the conditions of the Community Corrections Order. Now, Mr Rowe, we will have to print that out and have you sign that. So, Mr Rowe, I am just going to hand up this order and counsel can approach you, which just outlines, lists the community - or is the Community Corrections Order which I have just made. I am going to ask you to sign that order. Please take your time to read it with your counsel because in signing it as you will be saying that you understand the effects of the conditions of the order and that you consent to the order being made. There's nothing else, counsel?
75MR ROPER: Nothing arising, Your Honour.
76HIS HONOUR: Yes if Mr Rowe could be taken away please. Mr Rowe, we will just give you a copy of the order. Thank you, if Mr Rowe could be taken away. Yes thank you, counsel.
77MR ROPER: As Your Honour pleases.
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