Director of Public Prosecutions v Ryan and Ors
[2012] VCC 1372
•14 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MILDURA
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE RYAN DANIEL WAYNE CHANCELLOR DANIEL JOSEPH CHANCELLOR |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 13 September 2012 | |
DATE OF SENTENCE: | 14 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Ryan & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1372 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | OPP |
| For Accused Ryan | Mr F. Andrighetto | Cynthia A. Toose & Associates |
| For Accused D.W. Chancellor | Mr V. Peters | Chris McLennan & Co |
| For the Accused D.J. Chancellor | Mr G. Tellefson | Martin Irwin & Richards Lawyers |
HIS HONOUR:
1 Shane Ryan, Daniel Wayne Chancellor and Daniel Joseph Chancellor, you have all pleaded guilty to one charge of false imprisonment, contrary to common law. The maximum penalty for that is ten years' imprisonment. You have also pleaded guilty to one charge of attempting to possess a drug of dependence, namely cannabis, contrary to s.321M of the Crimes Act 1958 and s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is six months' imprisonment. Daniel Wayne Chancellor, you have also pleaded guilty to one charge of threatening to inflict serious injury, contrary to s.21 of the Crimes Act 1958. The maximum penalty for that offence is five years' imprisonment.
2 I have taken your pleas of guilty into account in your favour in mitigation of sentence. You have all admitted prior convictions and I will refer to those in due course.
3 A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows:
4 On 13 February 2012, you, Shane Ryan, sought to purchase $80 worth of cannabis from one Caleb Stevens. You attended at his premises and gave him the sum of $80 in cash. It appears that Stevens had no intention of supplying the cannabis to you, and after making what he said were some enquiries, he said he was unable to supply it and returned to you the sum of $35. You then left his premises. You returned to your premises and told the Chancellors what had happened and all three of you then decided to return to Stevens' premises to recover the balance of the $80 that you had given him, namely $45. You armed yourselves with a pool cue and a knife.
5 After arrival at Stevens' premises, he was forced into Mr Chancellor senior's vehicle and thereafter all three of you travelled to premises located in San Mateo Avenue in Mildura. After arrival at those premises, Stevens was able to escape from you and the police were contacted. They arrived shortly thereafter and you, Daniel Wayne Chancellor and Daniel Joseph Chancellor, were both there arrested by the police. You, Shane Ryan, were arrested at approximately 10 pm that night. All three of you were questioned and made a number of admissions to police.
6 This was a violent reprisal after losing a small sum of money whilst attempting to purchase a small quantity of cannabis, and it may properly be described as serious offending. Any sentence that I impose must be calculated to deter you and others from behaving in this way, and you also must be punished for your offending.
7 I now turn to your personal circumstances.
8 Shane Ryan, you were born on 21 July 1975 and you are now aged 37 years. You are single. You have admitted two prior convictions, the most recent of which was 14 years ago and those convictions are not significant for sentencing purposes in your case. You spent four days in custody on these charges following your arrest. You reside in Grong Grong, a small town in New South Wales, approximately 20 kilometres from Narrandera, with your mother and father. You have limited education, although you remained at school, and following that you have been employed in a variety of manual labouring tasks in piggeries and a horse training facility in Euroa.
9 I heard evidence on your behalf from Mr Jeffrey Howard Downs, a Salvation Army volunteer, who has known you for about five years. He described you as a quiet, unassuming person, not outgoing and he has never seen any aggressive behaviour exhibited by you. He also gave evidence of the fact that you are the carer for your elderly parents and that your mother suffers from a congenital illness which has resulted in her effective immobilisation. The fact that you are your parents' carer is a matter which clearly goes to your credit and it is also relevant to the sentencing task I must perform because in the event that you were incarcerated in relation to your offending, your parents would lose the benefit of your support and as your counsel informed me they live in a remote town with little or no public transport and they are, it would seem, entirely dependent on you for their welfare.
10 Daniel Wayne Chancellor, you were born on 19 December 1965 and you are 46 years of age. You have admitted an extensive criminal history, including a number of offences of violence, but you have not offended, with the exception of this offence, since 2008.
11 I have received in evidence a psychological report of Dr Aaron Cunningham, a consulting and forensic psychologist, detailing your background and psychological and psychiatric profile. It is clear from the contents of that report that you suffer from a number of serious psychiatric illnesses, including bipolar disorder and borderline personality disorder of some severity. You also have a longstanding history of drug and alcohol dependence and no doubt your psychiatric history and drug and alcohol dependence has contributed substantially to your offending in the past. It is clear from the contents of Dr Cunningham's report, that the principles set out by the Court of Appeal in R v. Verdins (2007) 16 VR 269 are engaged in your case.
12 Whilst I have observed that general and specific deterrence are important sentencing considerations in cases such as this, by operation of the principles in R v. Verdins, I have moderated the application of general deterrence in your case and, in my opinion, your moral culpability for your offending may properly be reduced as a result of your psychiatric illness. Furthermore, it is clear to me, that imprisonment in your case would have a serious adverse effect on your psychiatric condition.
13 Mr Jeffrey Howard Downs, who gave evidence in the case of Ryan, is married to your mother. He also gave evidence about your current circumstances in Mildura. It would appear that you and your son, who have now been reunited after many years living apart, are closely dependent on one another. Your son is in part dependent on you for his welfare and I suspect you are in part dependent upon him for your welfare. Mr Downs has closely observed your relationship with your son and gave evidence that your behaviour and your son's behaviour both appear to have stabilised as a result of you both receiving treatment and medication. He is clearly a supportive influence in your life.
14 Daniel Joseph Chancellor, you were born on 26 November 1987 and you are 24 years of age. You have admitted three prior court appearances, the most recent of which was in 2010 and resulted in your release for a period of six months without conviction. As I have already observed, you are the son of your co-accused, Daniel Wayne Chancellor. When you were three years old, your mother was diagnosed with schizophrenia and your parents thereafter separated. You were then raised by an aunt and it would appear that your childhood and developmental years were severely disrupted.
15 I have received in evidence a report of Mr Ian Joblin, a consulting and forensic psychologist, which details your background and psychological and psychiatric history. Both of your parents suffer from severe mental illnesses and it would appear that this has clearly impacted on your development. You also have an extensive history of drug and alcohol use. In Mr Joblin's opinion, you suffer from a severe personality disorder with schizophrenic features. In fact a diagnosis of schizophrenia has been accepted by Centrelink in your case and it is the basis for your disability pension.
16 In my opinion, the principles in R v. Verdins, which I have already referred to, are also engaged in your case. I have applied the principles in your case in the same way that I applied them to your father's case. Your case is somewhat different to your father's, you have never been imprisoned and you are still a relatively young man and, in my opinion, it is clear that imprisonment in your case would have a very serious adverse effect both on your psychiatric condition and your prospects for rehabilitation.
17 Having regard to the material that I have referred to, in my opinion, in all three cases, rehabilitation is an important sentencing consideration and accordingly I had all three of you assessed for your suitability for placement on a Community Corrections Order. I have received reports from Mr Peter Tyson, a Community Corrections Officer in Mildura, and in each case those reports conclude that you are suitable for release on such an order. Accordingly, in the result, the sentences of the court are as follows:
18 In the case of Shane Ryan, in relation to Charges 1 and 2 on the indictment, you are convicted and sentenced to be released on a community corrections order for a period of 18 months on the following conditions. You must not commit whether inside or outside of Victoria during the period of the order an offence punishable by imprisonment. You must report to and receive visits from the Secretary of Corrections Victoria during the period of the order. You must report to the Community Corrections Centre at Mildura before 4 pm on
18 September 2012. You must notify the Secretary of Corrections Victoria of any change of address or employment within two clear working days of that change. You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary of Corrections Victoria and you must comply with any direction given to you by the Secretary of Corrections Victoria.
19 I further order the following. You must be under the supervision of a Community Corrections Officer for the period of the order, that is 18 months. You must undergo assessment and treatment, including testing for drug abuse and/or dependency as directed by the Regional Manager of Corrections Victoria. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager of Corrections Victoria, and you must undergo a mental health assessment and treatment including but not limited to mental health, psychological, neuro psychological and psychiatric treatment in a hospital or residential facility as directed. Do you understand those conditions, Mr Ryan?
20 ACCUSED (RYAN): Yes.
21 HIS HONOUR: Do you agree to enter the order?
22 ACCUSED (RYAN): Yes.
23 HIS HONOUR: Thank you. You can come forward and sign that. Not just yet, we will just do it all at once.
24 Daniel Wayne Chancellor, in relation to Charge 1 on the indictment, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for a period of 86 days.
25 I declare that you have served 86 days by way of pre-sentence detention, not including today.
26 In relation to Charges 2 and 3 on the indictment, you are released on a community corrections order for a period of two years, on the following conditions. You must not commit whether inside or outside of Victoria during the period of the order an offence punishable by imprisonment. You must report to and receive visits from the Secretary of Corrections Victoria during the period of the order. You must report to the Mildura Office of Corrections before 4 pm on 18 September 2012. You must notify the Secretary of Corrections Victoria of any change of address or employment within two clear working days of that change. You must not leave Victoria except with the permission either generally or in relation to a specific case of the Secretary of Corrections Victoria and you must comply with any direction given by the Secretary that is necessary for the Secretary to ensure your compliance with the order.
27 I order the following special conditions. You are under the supervision of a Community Corrections Officer for a period of two years. You must undergo assessment and treatment, including testing for drug abuse and/or dependency as directed by the Regional Manager of Corrections Victoria. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager of Corrections Victoria. You must undergo a mental health assessment and treatment including but not limited to mental health, psychological, neuro psychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager. Do you understand those conditions, Mr Chancellor?
28 ACCUSED (CHANCELLOR SNR): Yes Your Honour.
29 HIS HONOUR: Do you agree to enter that order?
30 ACCUSED (CHANCELLOR SNR): Yes.
31 HIS HONOUR: Thank you.
32 Daniel Joseph Chancellor, in relation to Charges 1 and 2 on the indictment, you are convicted and sentenced to be released to a community corrections order for a period of two years, on the following conditions. You must not commit whether inside or outside of Victoria an offence punishable by imprisonment during the period of the order. You must report to and receive visits from the Secretary of Corrections Victoria during the period of the order. You must report to the Corrections Victoria before 4 pm on 16 September 2012, so the date is different in your case, Mr Chancellor, according to this. You must notify the Secretary of any change of address or employment within two clear working days of the change. You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary of Corrections Victoria and you must comply with any direction given to you by the Secretary during the period of the order.
33 I order the following special conditions. That you be under the supervision of a Community Corrections Officer for a period of two years. That you undergo assessment and treatment, including testing for drug abuse and/or dependency as directed by the Regional Manager. That you undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager. That you undergo a mental health assessment and treatment including but not limited to mental health, psychological, neuro psychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager. Do you understand those conditions, Mr Chancellor?
34 ACCUSED (CHANCELLOR JNR): Yes, I do, Your Honour.
35 HIS HONOUR: Thank you, and you agree to entering the order?
36 ACCUSED (CHANCELLOR JNR): Yes, Your Honour.
37 HIS HONOUR: Thank you. Mr Tyson, the only issue that when the gentlemen need to report. I have noted on the reports that they, in two cases, are to report before 4 pm on the 18th, that is next Tuesday, and before 4 pm on the 16th, which is Sunday, so that cannot be right?
38 MR TYSON: Your Honour, in relation to - - -
39 HIS HONOUR: Are you happy with the two clear working days?
40 MR TYSON: We have actually made arrangements, Your Honour, they will actually be reporting straight after sentencing.
41 HIS HONOUR: I see.
42 MR TYSON: And given appointments to then come back.
43 HIS HONOUR: All right. In each case the order in terms of reporting will be that the three accused report to the Community Corrections Centre within two clear working days of the order.
44 MR TYSON: That is fine, Your Honour.
45 HIS HONOUR: So I will make the order in the terms provided for by my associate in the order.
46 MR TYSON: Thank you, Your Honour.
47 HIS HONOUR: All right, gentlemen, if you could all now stand forward and sign the orders.
48 I also make the ancillary orders, Mr O'Doherty, the forensic sample orders and the disposal orders. Gentlemen, you will be required to provide forensic samples to police, I think within 28 days of today's date. That would simply involve a swab being taken from your mouth and your DNA being obtained. A copy of the order will be provided to you and your legal representatives will advise you how you can provide that to the police.
49 All right, so can you all three step forward now and sign the orders and then I will sign them.
50 (Community corrections orders signed and acknowledged.)
51 (Section 464ZF orders signed and acknowledged.)
52 (Disposal orders signed and acknowledged.)
53 All right, thank you. Yes, I have made the orders in the case. Is there anything further in that matter?
54 MR O'DOHERTY: No, Your Honour.
55 HIS HONOUR: No. All right, thank you for your assistance, gentlemen. Thank you.
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