Director of Public Prosecutions v Russell

[2019] VCC 144

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00018

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT RUSSELL

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Bendigo
DATE OF HEARING:	6 February 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Russell
MEDIUM NEUTRAL CITATION:	[2019] VCC 144

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – attempted armed robbery – youthful offender
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited:	Bugmy [2013] 249 CLR 571; Brock Mills [1998] 4 VR 235; DPP vTokavo [2006] VSCA 156; R vMerritt, Piggott and Ferrari [2007] 14 VR 392
Sentence:	Convicted and sentenced to 3 months’ imprisonment and a community corrections order for a period of two years. Pre-sentence detention of 118 days declared pursuant to s.18 Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Docherty Legal

HIS HONOUR:

1Mr Russell, you can remain seated.  I will ask you to stand when I finally pronounce sentence.  This plea took place before this court on the 6th day of this month.  Scott Russell is aged 23 born on 1 March 95 and pleaded guilty to one charge in indictment J12752243, which is an offence under the Crimes Act, in particular a combination of s.75A and s.321M, being an attempted armed robbery.  The seriousness of this crime is demonstrated by the fact that the penalty proscribed by Parliament is 20 years gaol.

2You, Mr Russell, have significant priors, albeit not for violence.  You have already had two stints in gaol.  Your priors relate essentially to being part of a drug milieu.  You have numerous drug and public order offences.  You also have been found on at least two occasions with weapons, one significantly by way of relationship to this offence being a knife. Although I understand and accept the comments made by your counsel, as to being part of such milieu and maybe people carry that for protection, maybe.  It sounds a very dangerous occupation to me.

3The circumstances of the crime are somewhat difficult to fully comprehend, that is why I called for the CCTV.  There is not much further elucidation from the CCTV, except to show a brave victim and that whatever you were doing, under the impact of either drugs or alcohol, was fairly sustained.  In the sense that it appears to go for three or four minutes.  Exhibit A was the summary tendered by the learned prosecutor, which was accepted by Mr Lowy as the facts upon which I am to sentence you.  That details your various activities in this Coles car park this night, both before or very much leading up to these offences.

4You were observed in the Coles Liquorland from 7.20pm, behaving in a most irrational manner, either indicating you were very drunk and/or drugged, in circumstances where you had used a trolley which had hit one of the worker's cars, you had come under observation. Finally, you decide to seek from the victim, when he is innocently leaving Coles with his 24-pack of spring water to his car, you utilise a knife to make the demand for his keys and when he refuses, use the knife again.  A number of other people came to his assistance.  You, during the process, punched him and grabbed his shirt.

5A photo of the knife was tendered and it appears to be a steak knife that you got from your current partner's premises.  The precise background of how you got into this circumstance is very difficult to understand.  You suggest in your record of interview you had been fishing and had an argument with your partner.  However, you had also been consuming some form of homemade Bourbon.  Whatever the reason, the only way you can describe these events are bizarre and very, very dangerous.  Fortunately for the victim, he was not injured.  There is no victim impact statement.

6I think, Mr Prosecutor, he had either left the State or he was not interested?

7MR CORDY:  He has left the country.

8HIS HONOUR:  He has left the country.

9MR CORDY:  Yes.

10HIS HONOUR:  To date in regard to this offence, as agreed to by counsel today, you have served some 118 days.  As I say, I have signed a forensic sample order and a disposal order.  In submissions to me, there was no dispute between counsel that the seriousness of this offence calls for no other option but gaol.  The plea conducted by Mr Lowy and his submissions, were set out as Exhibit 1.  As Exhibit 2, was tendered a psychiatric report from Warren Simmons.  As best I can perceive from that, it shows a long history of you being drug-addicted, being a polysubstance abuser and also a person subject to liquor abuse.

11You unfortunately, like many people who appear in this Court, appear to have had a very disturbed background.  You have been subjected to violence of partners of your mother.  However, you basically are a person with a relatively high intelligence.  You fortunately, given the amount of drugs that you have consumed, do not at this stage appear to have any paranoia, although you have suffered that in the past, and clearly if you continue to abuse drugs you will have psychiatric issues.  The usual result, as you well know, for continuing such an addicted life is you are either dead up the end of an alley, in gaol for the rest of your life or you give up drugs.  Pretty stark reality for your life.  You have just got to have the guts to be able to do it.  Whether you have, it is a matter for you.

12There is character evidence put forward on your behalf, in particular by your partner's friends.  Given the limited time you have been in Victoria and the limited time you have known those people, I give that relatively limited impact.  I do however, take into account the significant matters in your background.  These matters of course, do not reduce the need for general and specific deterrence, but as set out by the High Court in Bugmy [2013] 249 CLR at 571, 594 to 595, they are such as need to be taken into account, especially given your relatively young age.

13Balanced against that of course, is the need to protect the community. This was a bizarre and violent attack on an innocent member of the community.  We are told in the character references and indeed, in particular Ms Lowry's statement, that you intend to change your lifestyle.  Well, we are yet to see that.  Given those circumstances, I indicated that I would seek a community correction report.  That has been positive.  I thank the officers for that.  It is also very realistic.  It indicates that you are a high risk of reoffending and there can be no issue with that.  That is the position.

14As I say, you are still young.  You have prior to this, no serious violent priors at all.  Despite the potential for the victim in this matter, no injury was sustained by him, of any magnitude but for the results of the punch, obviously.  When sentencing a person with your background and still relative youth, the Court of Appeal have set down very important principles, which relate to rehabilitation, starting firstly with Brock Mills [1998] 4 VR 235, in particular the comments made by the then Mr Justice Batt at p.9.

15It is also appropriate to refer to the current President's comments on these matters and sentencing of people who are still relatively young and taking into account the issues of rehabilitation.  In particular, the President in Tokavo [2006] VSCA 156, judgement of 27 July 2006, said at p.5, [21],

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that".

16He took that matter further in R v Merritt, Piggott and Ferrari, reported the next year, reported [2007] 14 VR 392 at p.1, in particular at paragraph 49 and he said this,

"The sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation [yours are very early, I might add], just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the court does".

17Those principles of course, have to be balanced with the seriousness of this crime. As I said, there is no issue that this is an appropriate matter for a period of gaol and you have served nearly four months now. In my view there is more gaol time required to bring the right balance. However, I do accept the proposition put by Mr Lowy that at this time in your life, a combined sentence under s.44(1) of the Sentencing Act of a period of imprisonment and a period on a community correction order may well be an opportunity to see if we can trust you and trust your alleged intent.

18I want to tell you now, so that you understand.  You come back in front of me, Mr Russell having breached this, and do not bring counsel, just bring your toothbrush.  Do you understand?

19ACCUSED:  Yes, Your Honour.

20HIS HONOUR:  Because you are going to get a nice whack, if you come back in front of me.  All right?  So, I am giving you this opportunity.  This is the last opportunity you get.  You come back in front of me having breached this, and I am going to give you a very significant sentence, on top of what you have already served.  And in my view, given the risks that have been referred to in regard to your future by the Department, you breach this and you are going down the path of spending the rest of your life in gaol.  The next time you might well kill someone.  Mr Lowy, what I am contemplating is this.

21MR LOWY:  Yes, Your Honour.

22HIS HONOUR: That under s.44(1), I order that in addition to the 118 days, which has to be discounted under that provision, so even though I make a declaration that the pre-sentence detention that he has served to date is 118 days, what I intend is that he serves on top of that, another three months.

23MR LOWY:  Yes, Your Honour.

24HIS HONOUR:  Having served that three months, he is then released for a period under the CCO of two years.  There is no recommendation that I impose community work and often that is put in, to add to the sentence.  What is the recommendation in the report however, as far as your client is concerned and most importantly, is the recommendations of - under s.48D(3)(a), treatment rehabilitation ‑ ‑ ‑

25MR LOWY:  Yes.

26HIS HONOUR:  ‑ ‑ ‑ for drugs; (3)(b), for alcohol; mental health under (3)(e) and supervision.  All of which I will put in.  And (3)(f), any treatment programs to try to assist Mr Russell in not reoffending.  So, at this relatively young time in his age, despite his background, I am prepared to give him this one last chance.  So necessary, I know he has signed a consent but ‑ ‑ ‑

27MR LOWY:  To sign the order, yes.

28HIS HONOUR:  ‑ ‑ ‑ given the terms of that, it will be necessary for you to just ensure that he does consent to that matter.  Yes?

29MR LOWY:  He consents, Your Honour.  Yes.

30HIS HONOUR: All right. Yes, stand up, Mr Russell. In addition to the 118 days pre-sentence detention under s.18, I am going to be giving you another three months to serve. Having completed that three months, you will then be sentenced to a community correction order for a period of two years, which will begin once you are released from gaol. So, I cannot be precise as to what date that is, but I would presume you will serve the full three months, unless there is some administrative situation for you due to lockdowns, but there is not much that I can do about that, as to being precise. So, the CCO will begin when you are released and that will be for a period of two years. It will be the conditions that I have indicted to your counsel, but most importantly above all those conditions for you, there will be two conditions. One, no more criminal offences and no drugs.

31ACCUSED:  Yes, Your Honour.

32HIS HONOUR:  You really are at crisis time in your life, so if you want to enjoy the company of your partner and her friends, a person who seems to be very interested in you and known you for some time, then it is up to you.  All right?  Very well.  Yes, well you will be required - Mr Lowy, if you would organise for the order to be signed.

33MR LOWY:  Yes, Your Honour.

34HIS HONOUR:  A declaration under 6AAA is very difficult in these circumstances, because of the various factors involved.  I want to indicate that this declaration would not bind me in any way, if you come back on breach in front of me.  However, doing as best I can to comply with the requirements of Parliament, the additional period of gaol I would have had you serve, had you not pleaded guilty in this matter, is a period of 12 months.

35MR CORDY:  If Your Honour pleases.

36HIS HONOUR:  So that would be in total 12 months plus the 118 days, under 6AAA and no community correction order.  As I say, I make that declaration, I make this sentence on the basis of you being a person, coming before the Court, intending to change and a person to whom the Court has the opportunity to give a last chance to rehabilitate himself.  If you came back without those aspects, having committed a criminal offence and still on drugs, I would not see myself constrained by those limitations.  Yes.  Any matters?

37MR CORDY:  I am not sure that Your Honour warned the accused that the police may use reasonable force to take the forensic sample order, if need be.

38HIS HONOUR:  Right.  I think they do it in gaol, do they not?  They do not wait for him to come up.

39MR CORDY:  No, that is right.  I think it will be done in gaol but nonetheless ‑ ‑ ‑

40HIS HONOUR:  Mr Russell, if you do not know it, because of the seriousness of your offence I have ordered a forensic sample.  That means they come and take a swab from your mouth.  It is important for me to tell you that you have got to consent to that process, because if you do not they just come back and I give an order for you, for it to be carried out on you.  All right?

41ACCUSED:  Yes.

42HIS HONOUR:  it is much easier to consent rather than being forced to do it.  Yes.  All right, well good luck.  I do not want to see you again, in the nicest way.  All right?

43ACCUSED:  Thank you.

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