Director of Public Prosecutions v Russell (a pseudonym)

[2019] VCC 1201

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JERALD RUSSELL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2019
DATE OF SENTENCE:	2 August 2019
CASE MAY BE CITED AS:	DPP v Russell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1201

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Early plea – theft – robbery – attempted robbery – carjacking – aggravated exposure of a police officer to a risk by driving – multiple co-offenders – remorse – drug addiction – mood and emotional instability – community interest in rehabilitation – young offender - limited prior convictions

Legislation Cited: Crimes Act 1958; Sentencing Act 1991

Cases Cited: R v Mills [1998] 4 VR 235

Sentence: Total Effective (State) Sentence: 11 months imprisonment, 2 year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Ms T. Tripp	Balmer & Associates

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

HIS HONOUR:

1Jerald Russell[1], you have pleaded guilty to two counts of theft, three of robbery, two of attempted robbery, one of carjacking, one of aggravated exposure of a police officer to a risk by driving and two summary charges of resisting police and driving whilst unlicensed.

[1] A pseudonym.

2The relevant maximum penalties are set out in the prosecution opening, which I incorporate by reference.

3The circumstances of the offending were set out in the prosecution opening which was read in open Court by the learned Crown prosecutor this morning, which I incorporate by reference. The offending arises out of a spate of criminality by you over a period of literally less than two days from 30 October and 1 November 2018.  You were effectively involved as the driver of the getaway car for a group of younger offenders, all under 18 years, who engaged in a series of offences that involved, first of all, stealing a Silver Holden Club Sport, motor vehicle from a motel in San Remo.

4You were then driving that motor vehicle at a later time on 8 November 2018 when the police saw you and you attempted to escape. One police officer had his body in the vehicle from the passenger seat, you put the accelerator down the officer was dragged for a couple of metes before falling to the ground, the car moved for a couple of metres and crashed into a fence. That constitutes the offence of aggravated exposure of an emergency worker to risk by driving, and the vehicle itself was stolen. That was Charge 9. 

5The vehicle itself was stolen back on 30 October 2018.  Your driving of the vehicle to the scene of Charge 2 is theft, even though you were not involved in the theft itself.  It was a misuse of the vehicle.

6The other charge is Charge 2 which is the theft of another vehicle. This offending was where you were with these other young offenders. Unbeknownst to you these offenders stole wallet and keys from the change rooms of Casey Race Swimming pool. You then drove the offenders to the address identified in the documents from the stolen belongings using the stolen Silver Holden Club Sport. The young offenders took the keys and stole a white Volkswagen Jetta that was parked in the driveway outside the house. On November 2 2018 the white VW Jetta was recovered from Menzies Close in Narre Warren. On 13 November you made admissions to being the driver of the stolen white VW Jetta through the street robberies and attempted robberies on November 1 2018 that constitute charges 3 to 7.

7The offending in Charges 3, 4 and 5 is serious offending, all occurring within two or three hours of each other, where you were driving the vehicle. The four co-offenders proceeded to, just in broad night time, rob people going about their business in South Yarra, Caulfield and St Kilda.  Grabbing them and forcing them to the ground. This included punching Mr Prosser[2], stealing his mobile phone and papers. The same occurred with Ms Rodriguez[3] and Mr De Vires[4]. Both Mr De Vires and Mr Prosser have both given victim impact statements indicating the very serious impact that that offending has had on both of them, and no doubt it had a similar impact on Ms Rodriguez.

[2] A pseudonym

[3] A pseudonym

[4] A pseudonym

8Charges 6 and 7 involved attempted thefts where your co-offenders sought to steal money from McDonald's, there in St Kilda and similarly in relation to Charge 7, which is the attempted theft from the United service station in Lynbrook.

9Charge 8 is the theft of a Volkswagen Golf from a Ms Potter[5]. She was driving home and you drove behind her at the instigation of your co-offenders. They then proceeded to steal the vehicle and you were involved, you admitted that you were with the four of them when one of them pulled a knife, which you did not know about, in order to try and get the car keys from Ms Potter. After they had stolen her car keys and the car your co-offenders drove off in the car and you drove behind them.  Charge 8 is the offence of carjacking, which is a serious offence. Robbery of a vehicle with violence. Again that would have been a serious impact on her.

[5] A pseudonym

10There are two summary charges. One was of driving unlicensed. When the police first sought to arrest you on the 8th you resisted them, so that is the summary charge of resisting the police. You were bailed however, after the police made further enquiries you were re-arrested on 13 November and in a record of interview you admitted your involvement in the other offences that took place approximately a week prior.

Seriousness of the offending.

11It is not disputed by your counsel that these were a series of serious offences.  The theft of the motor vehicles all had an impact on the victims even though your conduct involved driving the stolen vehicle.

12In relation to Charge 1, the victim impact statement indicates that the theft of the vehicle had a significant impact on the owner, even though you were not involved.

13In relation to Charge 9, aggravated reckless exposure of an emergency worker by risk of driving.  This is a prevalent offence and exposed the relevant police officer to a significant risk of injury, even though that did not ensue.  It is pure luck on your behalf that it appears the officer only sustained minor injuries that did not require him to go to hospital.  Any movement of a vehicle when someone is not properly seated and secured is inherently dangerous, and that is exactly what you did. In one sense it was lucky you hit a fence after a couple of metres.

14It is significant in relation to that charge, Charge 9, that upon your arrest in an interview with the police you conceded the dangerousness of your action and stated that you were sorry.

15The spate of offending constituted by Charges 1 through to 8 is very serious.  The three robbery offences were serious assaults on innocent members of the community going about their business late at night in public. Although you were involved only as the getaway driver, you are liable as being complicit in the offending. The offending had a major impact on Mr Prosser as set out in his victim impact statement and on Mr De Vires, who also provided a victim impact statement in Court.

16Although the other victims didn't provide victim impact statements it must have had a significant impact on them, particularly on Ms Rodriguez. The same applies to the two attempted robberies.  The basis of your involvement is that you were merely the driver and not involved in the actual attempted robbery.  This somewhat lessens your culpability, but you are still complicit in serious offending.

17Similar culpability arises in relation to Charge 8, which is the carjacking.  You admitted you were present but denied knowledge of the knife that was used by the co-offender. Again this offending must have had a major impact on the complainant who found herself followed and then relieved of her vehicle and personal possessions in the early hours of the morning.

18An aggravating feature of all of the offending was that you were an unlicensed driver at the time. A further aggravating feature is that you were on an adjourned undertaking for car theft, among other offences at the time of the offending.

Overall seriousness

19All of the offending occurred in company, although you were, save in relation to Charges 8 and 9, not actively participating in the actual execution of the offending.  However you were still complicit in the offending committed by the principle offenders.

20You were invited by the co-offenders to be the driver of the vehicle while they engaged in this spate of activity.  The mere fact that this was your role cannot mean that you are not to be held accountable for your conduct.

Matters in mitigation.

21In a comprehensive submission your counsel put a number of matters in mitigation. First I will revert to the dispositions in relation to your co-accused.  Two of them have been dealt within the Children's Court.  A female, Jones[6], was 17 years old and she pleaded guilty to a number of offences, some of which you were involved in and received a diversion order in the Children's Court.

[6] A pseudonym

22Another co-offender was aged 15, he was released on a youth attendance order, again for a number of offences, some of which you were involved in. He breached that order and he was re-sentenced to a Youth Justice Centre order for a period of nine months.  Some of the charges that those two offenders faced were slightly different from yours.  Two other co-offenders, aged 16 and 17, have not had their matters finalised.

23Parity is of some relevance, it is significant that the other persons involved in the offending were dealt with in the Children's Court and given what appears to be relatively lenient dispositions.  Although they were three or four years younger than you and the focus on rehabilitation is much more salient in their dispositions.  The dispositions that they have taken, the two that I am aware of, do have some relevance.

Prior convictions.

24At the time of this offending, as I noted, you were on a without conviction undertaking for committing the offences of theft of a motor vehicle, failing to answer bail, dishonestly undertaking retention of stolen goods and committing an indictable offence on bail.  Your counsel indicated that the offending involved you driving a stolen vehicle where there was a quantity of cigarettes that constituted stolen goods.  I note that you were dealt with, without conviction and that would indicate that the offending was on a lower level of seriousness, however it is still of some relevance.

Personal circumstances.

25Your personal circumstances were set out in a comprehensive plea submission by your counsel as well as in the report from Mr Ball[7].  You are aged just under 24 and hale originally from South Africa, you are of Indian extraction.  You migrated to Australia with your family when you were aged about four.  Your parents were present in Court to support you.  You are the middle of three children.  Your older brother is working, and your sister, who is currently undertaking her VCE suffers a very serious blood disorder requiring significant medical intervention.

[7] Exhibit 2 on the plea.

26Your mother works as a nurse, particularly in nightshift, and your father is in sales.

27Your mother provided a letter to the court indicating that the focus by the family on your younger daughter's serious medical condition meant that both she and your father were unable to focus on your supervision in recent years.  This combined with some bullying at school led to a development of low self-esteem, and an inability for you to properly transition into adulthood.

28Even though you have completed your VCE you have not had secure employment since leaving school, although you have worked in sales and hospitality.

29You were introduced to cannabis some years ago and shortly before this offending were introduced to methylamphetamine by a musician associate of yours.  You were using methylamphetamine at the time of this offending.  Your co-offenders were acquaintances. It was put that effectively they were the instigators of the offending and you were directed by them to engage in your role as a getaway driver.

30It is clear that this was group offending. For young offenders the inclination to seek to please other peers is a very important factor in offending group behaviour, and that seems to be what is the position here.

31Before the Court is a report from Mr David Ball, forensic psychologist, who indicates that you meet the criteria of severe stimulant use disorder.  He notes that you have lowered mood, low self-esteem and anxiety relating to associating with negative peers.  He further notes that in negotiating the transition to adulthood your immaturity and the influence of negative peers coupled with low self-esteem has led to poor decision making, which then led to your involvement in drug taking and offending.

32He also notes that you almost meet the criteria for avoidant personality disorder.  He states that the avoidant features of your personality stem from your experience of bullying and racism in the Australian school system since arriving in the country.

33He noted that you have strong family support, although in recent times this has not been utilised by you.  He is of the view that, with appropriate support and mentoring from your family you would benefit from treatment for drug relapse prevention. This could also address your personality features and mood management issues.  Also in evidence was a report from a forensic counsellor who indicates that you have good insight into your psychological functioning and would be a good candidate for appropriate counselling.  Thus immaturity and lack of self-esteem are really at the base of this offending.

34In sentencing, your counsel emphasised your early plea of guilty.  I give you credit for that.  You have taken responsibility for your conduct and as I have indicated when you were first arrested you did express remorse.

35Your plea has obviated the need for any committal and the matter has been dealt with expeditiously by your solicitors.

36Your plea is also evidence of remorse and I am prepared to accept that you are remorseful for your conduct.  This is confirmed by your mother and also from the report of Mr Ball.  Your mother also indicates, and this is significant, that in recent times you have re-engaged with a church that the family had previously been involved with.

37The emphasis of your plea was that focus should be on rehabilitation and that the interests of the community in sentence could be achieved by a combination sentence.  The prosecution conceded a combination sentence could be appropriate or within range.

38I have had you assessed for a community corrections order and you have been found to be suitable.

39The offence of carjacking and aggravated reckless exposure require mandatory prison sentences unless there are special circumstances.  Your counsel did not submit that there were.

40Further the sentence in relation to Charge 9 must be cumulative on other sentences unless otherwise ordered.

41In relation to Charges 1 to 7 I regard it as appropriate to impose an aggregate sentence given that they arise out of a single course of conduct over a very narrow period of time and they are of a similar nature.

Purposes of sentencing

42The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.

43In sentencing you I must have regard to a range of factors such as the serious of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  I am required to balance to interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

44Considerations of general deterrence, specific deterrence and denunciation are important.  It is absolutely unacceptable that law-abiding members of the community should be the subject of robberies in the middle of the night with violence.  Similarly people are entitled to have their vehicles not stolen by you and your co-accused.  Also police officers are entitled to expect that when motorists are requested to stop they will do so when requested to do so.

45On the other hand you are a youngish offender and as your counsel submitted the case of Mills[8] supports the principle that if at all possible, first time offenders, particularly young offenders should be the subject of dispositions that encourage their rehabilitation and if at all possible they should be kept out of custody.  All too often people of previous good character, following the use of drugs, get involved in the criminal justice system.  That is what has happened here.  As your counsel submitted you have significant protective factors with the support of your parents and your insight into your own conduct as evidenced by the report of Mr Ball.  Notwithstanding the seriousness of the offending here and the impact on the victims, it is obviously in the interest of the community that your use of drugs be addressed and that an attempt be made to rehabilitate your back into the community.  The prosecution accepted that a combination sentence would be within range.

[8]R v Mills [1998] 4 VR 235

46I regard this as very much a fork in the road for you in your transition to adulthood.  No doubt the present period of nearly nine months on remand would be a very salutary experience for you. Particularly given your psychological make up of low self-esteem that is a consequence of bullying that you have been exposed to while at school in this country.

47I note from the plea you have made significant use of the various programs that are available on remand and I commend you for this.

48So could you please stand.

49The sentence of the court is on Charges 1 to 7, I am imposing an aggregate sentence of four months' imprisonment, to be followed on the completion of the sentence of a two year Community Corrections order.

50On the charge of carjacking you are convicted and sentenced to four months' imprisonment, cumulative on the four months on the Charges 1 to 7.

51On the charge of aggravated reckless exposure to police by driving you are sentenced to four months imprisonment and I direct that three months of that sentence be cumulatively on the other two sentences of imprisonment I have imposed.

52Making a total effective sentence of 11 months' imprisonment, to be followed by a two year Community Corrections Order.

53On the summary charge of resist an emergency worker on duty you are convicted and fined $500, and on the charge of unlicensed driving you are convicted and fined $500.

54On the charges of one to nine, and on the unlicensed driving charge, all licences you hold are cancelled and you are disqualified from driving for a period of two years from 13 November 2019.

55I declare that had you not pleaded guilty I would have imposed a total effective sentence of three years' imprisonment with a two year non-parole period.

56I declare pre-sentence detention of two-hundred and sixty-two days.

57The prosecution have sought a disposal order for the property that was seized from you when the police raided your house.  So I propose to order that.

58They have also sought a compensation order, the RACV, on one of the cars; $6,138.  I will make that order.  Another compensation order to Allianz on another of the vehicles. 

59The police have also sought a forfeiture order of moneys that were found on you of $60 and $54, and so I will make that order as well. 

60I am imposing a two year community corrections order from you when you are released from prison, which will be in about two months' time.  The order provides that you are under supervision of a Community Corrections officer for that entire period, that you have got to obey all lawful directions of them, tell them of any change of address and receive visits at home as required.  It is also a condition of that order that if you commit an offence carrying a term of imprisonment for that two year period that breaches the order and you will be brought back in front of me for a breach.  They are the general orders of a community corrections order and your counsel will have explained them to you.

61In addition to that I am requiring that you perform 200 hours of community work over the two year period.  I am ordering that you undergo assessment and treatment, including testing for drug abuse and dependency as directed by the regional manager, and you undergo any mental health assessment and treatment that they direct you to.  That might include going to a psychologist after you get a mental health treatment plan.  I am also ordering that you undertake courses as directed by the regional manager and that includes a road trauma awareness course.  You are required to report at the Dandenong Community Corrections Office within two business days of your release from prison.

62So I do not want to see you back in the criminal justice system.  You have got the support of your parents.  You have let them down, as my daughter would say, 'majorly'. They are a good family, you come from a good family and you have blown it.  But the Appeal Courts say that young offenders should be given a chance, and day after day in this Court we see people who get under the influence of ice and commit all sorts of offending and they need to be retrieved from that.  Part of that is in undergoing a drug course and you have already undertaken a couple of those.  But also part of it is being detoxed by a period in goal, and no doubt that is helping you to get off all the drugs, because cannabis is also a dangerous drug.  Prison also breaks the cycle of the bad company of these younger people who have led you along, being the driver of all these stolen cars.

63So by the time you get out of gaol they will be in the past.  They may well have moved on themselves from the area, whatever, but they will not be friends of yours any longer and so you can start afresh with good peers, peers that you might meet in the Church; in the community groups down there in Narre Warren.  You can then get yourself a career.  Twenty-three year old, down in that area they are building roads and building houses like there is no tomorrow.  So there must be jobs for labourers.  Get yourself a job as a civil engineer or learn how to be a civil engineer.  There is going to be people building roads, tunnels, railway lines as far as the eye can see down there, laying concrete.  Get a job there in that field, get the training and get into it. You will not even have to leave home.  You will be making more money than your parents probably if you can pull down a job.  But that is what you have got to do for a 23 year old, it is time to transition into adulthood and not be mucking around with young kids, going around in other people's stolen cars.

64I do not want to see you back, I would ask your instructing solicitor to explain again the terms of the Community Corrections Order and you have got these two compensation orders that you are going to have to try and pay off.  If you cannot pay them of you might have to go into bankruptcy to avoid the debt.  That is a matter for you, but that is hanging over your head as well, because these cars have been written off.

65Are there any other matters, Mr Prosecutor?

66MR RAIMONDO:  No, Your Honour.

67HIS HONOUR:  I thank you for your assistance, Mr Prosecutor, and you, Ms Tripp, and also the police officer who obviously done a very good job in the investigation of this matter. 

68MS TRIPP:  As Your Honour pleases.

69MR RAIMONDO:  As Your Honour pleases.

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