Director of Public Prosecutions v Rowles
[2023] VCC 2035
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01833
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES ROWLES |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Geelong & Melbourne | |
DATE OF HEARING: | 22 September 2023 | |
DATE OF SENTENCE: | 3 November 2023 | |
CASE MAY BE CITED AS: | DPP v Rowles | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2035 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Robbery – Trafficking in a drug of dependence – Handling stolen goods
Legislation Cited: Crimes Act 1958, ss 75, 88; Control of Weapons Act 1990, s 6; Drugs, Poisons and Controlled Substances Act 1981, s 71AC.
Sentence: Combination sentence of 181 days’ imprisonment and a Community Correction Order for 18 months with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For the Offender | Mr M. Page | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1Mr Rowles, you have pleaded guilty to an indictment[1] containing one charge of robbery,[2] one charge of trafficking in a drug of dependence (namely methylamphetamine)[3] and one charge of handling stolen goods.[4] The maximum penalty for each of those offences is 15 years’ imprisonment.
[1] Indictment M12152457.2.
[2] Charge 1 laid pursuant to s 75 of the Crimes Act 1958 (Vic).
[3] Charge 2 laid pursuant to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4] Charge 3 laid pursuant to s 88 of the Crimes Act 1958 (Vic).
2You have also consented to this court hearing and pleaded guilty to a related summary offence of possessing a controlled weapon without lawful excuse.[5] The maximum penalty for this offence is a fine of 120 penalty units or one year imprisonment.
Robbery
[5] Summary Charge 11, contrary to s 6(1) of the Control of Weapons Act 1990 (Vic).
3By way of a brief overview of the robbery offence, I note that it was committed in company with Jasmine Yates-Malone and Brodie Bell. You were 34 years of age at the relevant time while Ms Yates-Malone was 23 and Mr Bell was 28. You are now aged 36, having been born in May 1987.
4The victim of this robbery, Steven Hocking, was then 29. He had known Ms Yates‑Malone since 2014 but had never met you or Mr Bell. It was a pre‑mediated offence since you and your co-offenders arranged to lure Mr Hocking to an unoccupied property for the purpose of robbing him.
5Your co-offenders in that robbery have already been sentenced for their involvement as follows.
6On 5 May 2023, Ms Yates-Malone pleaded guilty to robbery and unrelated offences of obtaining property by deception, persistently contravening a family violence intervention order and possessing methylamphetamine and was sentenced to a 12-month community correction order.
7On 16 May 2023, Mr Bell pleaded guilty to a single charge of robbery. As part of a consolidated plea, he was sentenced to a total effective sentence of 176 days’ imprisonment (for which 31 days were for the robbery offence) in combination with an 18-month community correction order.
8As was agreed at the plea hearing, there is no basis to distinguish between you and them in terms of the role played as what each offender did was critical to the success of the plan.
Circumstances of the offending
9The circumstances in which you committed the offences for which you must now be sentenced are set out in the typed summary of prosecution opening for plea dated 20 September 2023,[6] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you fall to be sentenced was also discussed during the course of the plea hearing. I have had regard to that opening and to those discussions when determining the appropriate sentence in your case.
[6] Exhibit A.
10On 18 June 2021, Mr Hocking and Ms Yates-Malone began communicating via text message, exchanging about 78 texts over three days.
11On 19 June, Ms Yates-Malone asked Mr Hocking to meet her at the Gateway Hotel in Corio.
12After midnight on 20 June, you drove to that Hotel to meet Ms Yates-Malone. Mr Bell and another female, Stacey Frattin, were already there.
13At approximately 1:55 am, you, Mr Bell and Ms Frattin left the hotel and walked into the carpark.
14At approximately 2:00 am, Mr Hocking drove his vehicle to the hotel to meet Ms Yates-Malone and waited for about 30 minutes for her to arrive.
15At approximately 2:04 am, Ms Yates-Malone sent a text message to you. A minute later, Mr Bell had a 90-second phone call with Ms Yates-Malone.
16You then dropped Ms Yates-Malone off at the front carpark where Mr Hocking had been waiting.
17Ms Yates-Malone then arranged to meet Mr Hocking in the front car park which CCTV footage confirms occurred at about 2:30 am.
18After getting into Mr Hocking’s vehicle, she directed him to an address in Merlin Crescent, Corio and arranged for Ms Frattin to attend the same address.
19After parking in the driveway of that property at about 2:40 am, Mr Hocking went inside. He noticed that the house was derelict and appeared vacant. While inside, he met a male named Timothy Bourke.
20At approximately 3:23 am, you and Mr Bell attended that address.
21Your knock on the front door was answered by Mr Bourke, from whom you demanded his 'wallet and keys'. When he told you that he had none, you and Mr Bell pushed past him and entered the house.
22The two of you then demanded money from Mr Hocking who emptied his pockets while saying, 'I don’t have money'. Mr Hocking then placed the following items onto the kitchen bench:
·an iPhone 12;
·a Samsung mobile phone;
·his personal house keys;
·the keys to a Toyota HiAce vehicle;
·cigarettes; and
·the keys to his Ford FPV vehicle.
23You then patted him down before grabbing his belongings from the bench. As a guise, you also took Ms Yates-Malone’s purse.
24Your theft of the two mobile phones and keys for the victim’s vehicle, in the abovementioned circumstances, forms the basis for the robbery offence alleged in Charge 1 on the indictment. It is accepted that the second element of robbery is satisfied on the basis that the victim was placed in fear that force was going to be used on him then and there, not due to the actual application of any physical force. Your counsel told the court, and I accept, that your motivation for committing this robbery was to get valuables to trade or sell to fund your use of drugs.
25You and Mr Bell then left the property with Mr Bourke and Ms Yates-Malone, while Mr Hocking remained inside.
26At approximately 3:25 am, you and Mr Bell drove away from the property in Mr Hocking’s vehicle. Mr Bell then dropped you off at an unknown location.
27At approximately 5:50 am, the stolen vehicle was abandoned in a residential street in Hawthorn. The keys to the vehicle were thrown into the courtyard of a nearby property. Mr Bell and another male were arrested a short time later.
28Very shortly after being robbed, Mr Hocking reported the incident to police.
29On 13 October 2021, you were arrested at your home address in Bell Post Hill. A lawfully conducted police search of that property located the following items:
·Five resealable bags each containing methylamphetamine;
·Stolen registration plates bearing YEU 173;
·A fold out knife; and
·Your Apple mobile phone.
30Your possession of those items on that day, with the exception of the phone, forms the basis for a number of the charges to which you have pleaded guilty.
31The trafficking offence alleged in Charge 2 on the indictment, relates to the quantity of methylamphetamine which you possessed on that day for the purpose of future sale. The police photographs tendered as exhibit B depict, to some extent, what was found. The actual weight of that drug is not known but those photographs would suggest that it was a relatively low quantity as compared to some of the quantities that are the subject of trafficking simpliciter charges. I accept that you intended to sell that methylamphetamine in order to fund your own use of drugs.
32The offence of handling stolen goods alleged in Charge 3 on the indictment, is based on your possession of the stolen vehicle registration plates.
33And, the summary offence of possession of a controlled weapon alleged in Summary Charge 11, is based on your possession of the fold out knife.
Charged and remanded in custody
34Following the search, you were charged and remanded in custody. You were not able to be interviewed at that time due to the fact that you were a close contact of a person who had contracted COVID-19.
Pre-sentence detention
35You remained in custody from the date of your arrest until being granted bail on 12 April 2022. You have remained on bail ever since, a period of nearly 19 months. You therefore spent a total of 181 days on remand in relation to this matter, which period will be formally declared at the conclusion of this sentence hearing.
Resolution and guilty plea
36Your offer to plead guilty was made at a time and in circumstances that the prosecution accept warrant it being treated as an early plea. The resolution of this matter involved the prosecution ultimately deciding not to proceed with more serious charges. In my view, you are entitled to a sentencing discount that reflects the fact that your plea was an early one.
Remorse
37I am prepared to accept that you are remorseful for your criminal conduct. Among the matters that lead me to that view are your early plea, your acceptance of personal responsibility and regret for what you did, the efforts that you have made to seek help from various sources to address the issues that led you to offend, and the observations of those who have assessed you, including the author of the community correction order suitability report dated 22 September 2023.
Prior criminal history
38The prior criminal record filed with this court demonstrates that you have a relevant albeit somewhat aged and limited criminal history, Mr Rowles.
39You have appeared in court on seven occasions in the 11 year period between 2005 and 2016, although one was a successful appeal and another was a variation. Of most significance is the fact that you have been sentenced for assault police, recklessly cause injury (x2) and recklessly cause serious injury. You have been convicted and discharged, placed on a good behaviour bond without conviction on three occasions, and placed on a community correction order on two occasions. In contravention proceedings relating to one of those community correction orders, you were convicted and the original order was confirmed.
40It is of some significance that you have no criminal history involving dishonesty, let alone for a combination of dishonesty and violence (such as for robbery or armed robbery). Nor have you ever previously received an immediate term of imprisonment. Also notable, is the more than five-year period between your last significant court appearance on 31 March 2015 and the date of this offending.
41Bearing all of those matters in mind, together with the fact that you have made considerable progress towards your rehabilitation since you were released on bail for these charges, I have concluded that while specific deterrence and community protection have some relevance to this sentencing task, they are not as important as they might otherwise have been.
Personal circumstances
42I will now briefly describe your personal circumstances, Mr Rowles.
43You were born and raised in Maryborough as the oldest of three children in your family.
44You left school relatively early in Year 8 to pursue employment. The apprenticeship you commenced when aged 15 could not be completed due to injury.
45At a relatively young age, you entered into a long-term relationship that produced three children who are now aged eight, 10 and 14. Although that relationship ended when you were 27 due to your problems with excessive drinking and drug use, you maintain a good relationship with your children and their mother.
46Following the failed apprenticeship, you were ultimately able to secure employment with the local council at age 20. After being there for seven years, you moved to Bendigo where you worked in construction for about five years.
47You commenced to use drugs when aged 16, including cannabis and ecstasy, and began to drink alcohol even earlier and to excess. Your drinking moderated when you became a father at age 18. You began to use amphetamine around the time that you lost your apprenticeship which developed into use of methylamphetamine in your late 20s.
48An escalation in your drug use coincided with a diagnosis of Bipolar Disorder in 2013, for which you were prescribed medication. Whilst your compliance with that medication was patchy and you self-medicated with drugs at times, you have been medication compliant since your release on bail for the current charges.
49The COVID-19 pandemic negatively impacted on your ability to work and that resulted in an increased use of drugs and relationship difficulties.
50Upon being released on bail for this matter, you were able to work as a concrete finisher and more recently as a carpet layer. Your employment situation is now stable. That is a commendable achievement in its own right.
51However, there is a good deal more that you have done since being released on bail. Your counsel tendered a significant amount of material to demonstrate the impressive steps that you have taken over the period that you have been on bail. I have read those documents carefully and taken their contents into account in your favour. For present purposes, it is unnecessary for me to refer to them beyond the summary that your own counsel provided in his written submissions as to your achievements. It was in the following terms:
Since being released, he has:
·Completed CISP Bail with success, attending AOD counselling and Ballarat Community Health, which he has continued on a voluntary basis;
·Voluntarily attended Psychological Counselling with SOLS from May 2022;
·Gained full time employment in his chosen profession as a floor installer;
·Gained a Certificate 3 in Civil Construction;
·Stabilised himself on medication; and
·Remained drug free.[7]
[7] See exhibit 1, [26].
52As your counsel also pointed out, during the same period you have been in a stable relationship, lived in stable accommodation, enjoyed secure full-time employment and even helped others in the community.
53In relation to your current relationship, I note that your partner attended the plea hearing to support you. The two of you have been in a relationship for a number of years now and have two children aged five and 18 months. The youngest child was born while you were on remand. In that context and bearing in mind it was your first time in custody, I have no doubt that your counsel was correct when he said that your time spent on remand was a real 'wakeup call’ for you, Mr Rowles.
Matters in mitigation
54Your counsel was able to rely on a number of matters in mitigation, including the following.
55You entered an early plea to these charges.
56That plea has a utilitarian benefit which is of increased significance due to it having been entered during the Covid-19 pandemic. Furthermore, it is important to acknowledge that by pleading as and when you did, the victim of the robbery offence was spared the ordeal of having to give evidence at a trial.
57You are remorseful and have insight into your offending and the reasons for it.
58I take into account the period that elapsed before the prosecution finally agreed to withdraw the more serious charges as that no doubt created a degree of anxiety about your uncertain fate, and in particular as to whether you would ultimately be sentenced to a further period in custody beyond what you had served on remand.
59You have a good work history and are benefitting from stable full time employment in a profession that you enjoy.
60You have good family support and two young children who rely on you and that should act as a continuing motivating factor to remain drug and crime free.
61The commendable steps that you have taken to date while on bail for this matter is, as I have already noted, impressive. It provides a sufficient basis for taking a relatively optimistic view of your prospects for rehabilitation, which I have ultimately concluded are quite positive.
62That said, you must remain vigilant, Mr Rowles, because long term success in relation to overcoming a serious drug problem is difficult to achieve. Any relapse into further drug use in the future would place you at serious risk of re-offending and ending up back in prison.
Gravity of the offending
63Of course, matters personal to you are not the only matters to which this court must have regard when determining the appropriate sentence, Mr Rowles.
64It is also important for this court to consider the gravity of the offending in which you engaged. All of the offences contained in the indictment carry a significant maximum penalty and must therefore be regarded as inherently serious.
65I regard the robbery offence as falling somewhere between the lower and upper end of the spectrum of seriousness for this type of offence, and closer to the lower end. Whilst it was not a prolonged incident and involved no actual violence, it was planned and committed in company. No doubt it was a frightening experience for the victim at the time. I also take into account the fact that some of the victim’s property was recovered by police and no doubt returned to him.
66The trafficking offence is likewise one that I consider to fall towards the lower end of seriousness on the spectrum for such offences.
67The handling stolen goods offence is, in my view, neither a trivial nor particularly serious example of its type. The subject goods were capable of being replaced by the owner although their theft would no doubt have caused concern. There is no evidence before me as to those plates being used in the commission of any other offences and your reason for possessing them remains unclear.
68It is of some concern to this court that you were found in possession of a foldout knife but again I note that there is no suggestion that you had used it or intended to use it to commit any other offences.
Sentencing principles
69Clearly, general deterrence and denunciation are important sentencing principles to which this court must have regard when determining the appropriate sentence in this case.
70Specific deterrence and community protection are relevant considerations but less so. Mr Rowles has a relevant criminal history and is susceptible to offending if he is using drugs. In that context, it is vital that he understands the importance of remaining fully compliant with his Bipolar medication rather than choosing to self-medicate with illicit drugs as he has in the past, for the reasons explained by the psychologist Ms Cidoni in her report.
71Given the nature and seriousness of this offending, and in particular for the robbery, the imposition of a just punishment must involve imprisonment.
72The age and prospects of Mr Rowles is an additional and important sentencing consideration for this court.
73The totality principle is another relevant consideration given that Mr Rowles is to be sentenced for multiple offences, many of which were committed on the same day.
74Neither party sought to rely on the principle of parity to urge a particular course and that is understandable given the differences in the personal circumstances of the three offenders, including in relation to their criminal histories, and the additional but different additional offences for which each fell to be sentenced at the same time as being sentenced for this robbery.
75This court is required to sentence Mr Rowles in a manner and to an extent that is just in all of the circumstances. In that context, it is important to note that the period he spent on remand occurred while the COVID-19 pandemic was well entrenched and was therefore more onerous and a significant punishment in its own right.
Sentencing submissions
76In the course of his thorough and well prepared sentencing submissions, both written and oral, your counsel Mr Page urged the court to impose a combination sentence involving a period of imprisonment that did not exceed the time that you have already spent on remand together with a suitably conditioned community correction order.
77For their part, the prosecution acknowledged that a combination sentence was within the available range of sentences in the particular circumstances of this case. As to whether any such sentence ought to involve any further time in custody than the period spent on remand, the prosecution submitted that it was a matter for the court in the exercise of its sentencing discretion.
Analysis
78The court arranged for you to be assessed regarding your suitability for a community correction order so as to assist any consideration of whether it would be appropriate to sentence you to a combination sentence for this offending.
79You were assessed immediately following the plea hearing and found suitable. The assessing officer recommended a number of special conditions, including unpaid community work, supervision, and treatment and rehabilitation for drugs and mental health. A treatment condition relating to alcohol was not recommended for a number of reasons, including the fact that any such issues, if they arose, could be dealt with more generally using other conditions.
80I have ultimately taken the view that it is well open to this court to sentence Mr Rowles to a combination sentence involving a period of imprisonment followed by a community correction order.
81The more difficult question to determine has been whether the custodial component of that sentence should exceed the time that Mr Rowles spent on remand before being bailed, namely 181 days or approximately six months.
82If the court were to take that course it would mean that Mr Rowles would have to go back into custody for a further period in circumstances where he would be deprived of the assistance he is currently receiving to address his issues and he would be prevented from working and providing for his young family. Given his very limited experience with the prison system to date, following that course and subjecting Mr Rowles to the polluting atmosphere of a prison at this time would risk undermining the progress that he has made while on bail and increase the chances of a relapse into drug use and thereby of reoffending. To my mind, that would not be in his best interests or those of the community which has an important interest in offenders being rehabilitated.
83I have had regard to contents of the report of the psychologist Ms Gina Cidoni dated 25 August 2023, part of which specifically addresses the difficulties which a prison environment will likely present for Mr Rowles.[8]
[8] Exhibit 2
84At this point in time, what Mr Rowles needs is a court supervised community based disposition that will assist him to remain focused on his continuing rehabilitation but which will also involve a degree of punishment and hold him to account if he does not comply with the order, whether by reoffending, such as by being in possession of a drug of dependence, or by not complying with any of the other conditions.
Sentence
85So, after considering, balancing and weighing all of the relevant matters in this case, I have decided to sentence you as follows, Mr Rowles. Please stand.
86In respect of all of the charges to which you have pleaded guilty, you will be convicted and sentenced to an aggregate sentence of 181 days’ imprisonment in combination with an 18 month community correction order, which will have the following conditions.
87The core conditions of the order are as follows:
·You must report to the offices of Bendigo Community Correctional Services at 3 William Vahland Place Bendigo within two clear working days after the commencement of this order;
·You must not commit any offence punishable by imprisonment while the order is in force;
·You must comply with any obligation or requirement prescribed by the relevant regulations;
·You must report to and receive visits from the Secretary;
·You must notify a Community Corrections officer of any change of address or employment within two clear working days of the change;
·You must not leave Victoria except with the permission of the Secretary; and
·You must comply with any direction given by the Secretary that is necessary to ensure that you comply with the order;
88In addition to those core conditions, the order will also have the following special conditions:
·You must perform 200 hours of unpaid community work, as directed;
·You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed;
·You must undergo any mental health assessment and treatment, as directed; and
·You must be under the supervision of a Community Corrections officer for a period of 18 months, as directed.
89As you now know, Mr Rowles, one of the core conditions requires you not to commit any further offences during the period of the order. If you reoffend during that period and/or fail to comply with any one or more of the other conditions, you could be charged with breaching this order, an offence which carries a maximum penalty of three months’ imprisonment. Not only could you be sentenced for that offence, but you could also be sentenced afresh for the offences for which you have been placed on this order today. If that were to happen, you would face the very real prospect of being sent back to gaol. Do you understand all of what I have just told you, Mr Rowles?
90OFFENDER: Yes, I do Your Honour.
91HIS HONOUR: Very well. Are you prepared to consent, that is agree, to being placed on this order today and to abide by all of its conditions?
92OFFENDER: Yes, I do Your Honour.
93HIS HONOUR: Very well, Mr Rowles, you will now need to sign the order acknowledging your consent to being placed on this proposed order. My associate together with your counsel will now approach the dock to assist you.
94OFFENDER: Thank you.
95HIS HONOUR: You may explain anything, Mr Page, to your client if you need to before he signs that order.
96MR PAGE: Thank you, Your Honour.
97HIS HONOUR: Is that your signature on the order, Mr Rowles?
98OFFENDER: Yes, Your Honour.
99HIS HONOUR: Very well. I have also signed the order and it is now in force.
100You and Mr Page will be provided with a copy of the order before you leave court today, Mr Rowles.
Pre-sentence detention
101Pursuant to s18 of the Sentencing Act 1991, I declare that you have served a total of 181 days pre-sentence detention in respect of this sentence. I order that such period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6AAA indication
102Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to the current charges, you would have been sentenced to a total effective sentence of two years with a non-parole period of 18 months.
Ancillary order
103I make the disposal order in the terms sought by the prosecution, pursuant to s78(1) of the Confiscation Act 1997. In exercising that discretion, I have had regard to the fact that counsel for Mr Rowles did not oppose the making of such an order.
Other matters
104Are there any other matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Page?
105MR PAGE: Nothing, Your Honour.
106HIS HONOUR: Mr Pirrie?
107MR PIRRIE: No, Your Honour.
108HIS HONOUR: Thank you counsel.
109Mr Rowles, you may now come out of the dock and take a seat behind your counsel.
110OFFENDER: Thank you, Your Honour.
111HIS HONOUR: Perhaps if you can stand up, Mr Rowles. Before I adjourn the court, I just want to say a few things to you. Please don’t waste this opportunity. The community based order has a number of conditions that are designed to help you to continue with your attempts to turn your life around and rehabilitate. Overcoming a drug problem is a long term process and dealing with a mental health condition requires focus and discipline. You must remain drug free and that will be easier if you continue to take the medication you have been prescribed for your Bipolar condition. Lastly, please don’t make the mistake that some people who are placed on a community correction order make, namely prioritising work commitments or other aspects of their life above the obligations of the order. That would be very unwise and when you think about it, you can’t work if you end up being sent back to gaol for breaching the order. So please remain focused on getting through this order over the next 18 months, and if you do, that will be the end of this matter and you can move on with your life. Alright?
112OFFENDER: Yes.
113HIS HONOUR: So good luck with all of that.
114OFFENDER: Thank you, Your Honour.
115HIS HONOUR: Please now adjourn the court sine die.
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