Director of Public Prosecutions v Scarlett

[2013] VCC 2032

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01461

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH SCARLETT

---

JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 October 2013
CASE MAY BE CITED AS:	DPP v Scarlett
MEDIUM NEUTRAL CITATION:	[2013] VCC 2032

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Y. Malobabic	OPP
For the Accused	Mr R. Thyssen	Chester Metcalfe Lawyers

HER HONOUR: 

1Kenneth Scarlett, you have pleaded guilty to a charge of armed robbery which has a maximum sentence of 25 years' imprisonment, to a charge of assault, which has a maximum sentence of five years' imprisonment, and to a charge of handling stolen goods, which has a maximum sentence of 15 years' imprisonment.

2You have agreed to this court dealing with a charge of wilful damage, to which you have also pleaded guilty, and which has a maximum penalty of six months' imprisonment or a fine of 25 penalty units.

3I will sentence you on the basis of the opening read out by the prosecutor and which is Exhibit A.

4The charge of handling stolen goods, Charge 3, relates to you being found sitting in the driver's seat of a car in the early hours of 27 March 2013, a car which had been stolen a little while before.

5For the other charges a short summary follows.

6On the afternoon of 1 April 2013 you got off a bus at Northland Shopping Centre.  You told police in an interview the next day that either your brother of your girlfriend's brother told you that your phone, which you had given him earlier that day, had been stolen from him and that he had pointed out two teenage boys as having done this.  You got back on the bus, where they were, and confronted these two boys, who jumped off the bus and tried to run away from you.

7You caught up with one of them.  You punched and kicked this 14 year old boy after knocking him to the ground, Charge 2, you held a screwdriver to his neck or chest and demanded he give you his phone, which he did, Charge 1, and before you ran off you snapped his sunglasses in half, the wilful damage charge.

8You told police that you had bashed him but denied having or using a screwdriver.  You said you demanded he give you your phone and did not make a demand for his.  You said that when he gave you his phone, realising it was not yours, you threw it back at him.  The boy said he did not get his phone back.

9You also told police that you had two or three cans of Jim Beam in the morning and had taken Ice the night before.  You also said you had ADHD, which you said meant you snapped and did what you did without thinking of the repercussions.

10Without hearing evidence from witnesses I cannot decide whether it is true that your phone had been stolen and that you had been told about it.  I think it is very unlikely that the 14 year old boy had anything do with your phone, if it was taken from your brother of your girlfriend's brother, but I cannot say.  but it does not really matter, because what I can say is that even if that happened what you did was totally wrong.  You are not entitled to knock a 14 year old boy who was much smaller than you to the ground, punch and kick him, rob him of his phone using a screwdriver and snap his sunglasses.

11I accept that the reason you acted this way is that you were not thinking clearly because of your use of Ice and alcohol and I accept that you have been diagnosed with ADHD, but you cannot use any of that as an excuse for your behaviour.  It was your choice to have the drugs and alcohol and you would have known that the effect of the drugs and alcohol on you with that diagnosis is that you lose control.

12You said to the police "I'm not proud of my actions.  If you were an 18 year old that’s already in trouble but has got it coming and trying to better your life, that was drunk and pinging off your head, you're gonna bash him.  It's the first thing that pops into your head".

13You are right not to be proud of your actions and your behaviour really was outrageous.  However, I do accept that the armed robbery was at the lower end of the scale for that type of offence.

14I find that the features of your offending that make it more serious are that your victim was a vulnerable 14 year old boy, that you used actual violence, not just the threat of violence, to rob him, including punching and kicking him, that your victim ended up on the ground, that you used the screwdriver as a weapon, holding it to his upper body as opposed to just having it on you, the offences took place in a public place in the middle of the day when your victim was entitled to feel safe, and you were on bail at the time, having been charged only four to five days earlier for other offending.

15There are, however, some features that I take into account in our favour.  The first of these is the fact that you have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  By your plea the community has been spared the time and cost of a trial.  Witnesses, particularly the victim of your offending, have been spared the ordeal of giving evidence at your trial.  I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

16Further, I take it into account in your favour that you indicated early your intention to plead guilty to these charges.  Next, although you denied that you had used any weapon, when questioned by the police, you made full admissions about the rest of your behaviour and were cooperative.  After getting advice from your counsel you indicated your intention to plead guilty to all the charges, including the armed robbery.  In all of these circumstances I accept that your plea shows remorse for your offending.

17Apart from your plea of guilty, the next most significant factor in your favour is that you are still a very young man, aged 18, for whom the main purpose in passing sentence is your rehabilitation.  That means that I must attempt by my sentence to maximise your chances of rehabilitation.  Your prospects are not great but you must be given the chance to reform yourself.  It is up to you to make the changes you need to make in your life.  You do have the support of your mother, who was here in court today.

18I was told something of your personal history and circumstances by your counsel.  Your parents separated when you were quite young and you spend time living with one or the other.  You have a younger brother and sister.  Your brother has been diagnosed as having a spectrum disorder and ADHD.

19You attended school to Year 9 and have done some TAFE courses since.  Your diagnosis of ADHD was made when you were about 11 or 12, in Year 7, and you have been prescribed medication for this but it seems you have chosen not to take it but rather take illicit drugs.

20Unfortunately you have had a drug and alcohol problem since you were 15 or 16, which matches up with the beginning of your criminal record in the Children's Court.

21You have appeared in court 11 times since 2010 and have committed relevant offences for dishonesty, robbery, causing injury and property damage.  You have received probation, youth supervision orders and orders for detention in Youth Justice Centre.

22After you committed the offences for which I am to sentence you today, on other offences you received a YJC order for nine months detention and in August you received a sentence of imprisonment.  You are currently serving these sentences in the Youth Unit at Port Phillip Prison.  I am told that your earliest release date is 26 May 2014.

23I said a moment ago that it is up to you to make the changes you need to make in your life.  You seem to be slowly realising this and you have made a start.  While in custody this year you have taken a course at Kangan Institute and received a certificate in workplace safety arrangements.  You have participated in the GROW Program for improving mental health.  You have attended Narcotics Anonymous meetings and you have twice asked to be put on the waiting list for the Violence Intervention Program but have been unable to do so because you had today's charges outstanding.

24You have limited education and skills and you will need to improve on both of those if you are to change your life when you are released from custody.  I encourage you to take every chance you are given to turn your life around.

25As for your drug and alcohol use, the real test will be when you are back in the community.  So you should continue to do any courses that you can while in custody to help you with this.

26It will not be easy but if you do not make some real changes you will set yourself up for a life in and out of gaol and may cause more serious injury to others in future.  So it is up to you.

27As well as those matters personal to you to which I have referred, I must also take deterrence into account.  That means that by my sentence of you I must try to prevent other people from taking drugs and alcohol and attacking and robbing someone and also from being involved in stolen items.  It also means that my sentence has to make you think again before you commit offences in future.

28It is also important for me to consider the protection of the community from you and I bear in mind the likelihood of you re-offending.  I find you are likely to re-offend in the future but as you get older you may learn that there is a better way to live than having a drug taking/drinking/offending lifestyle.

29Application has been made for an intimate forensic sample to be taken from you and you have not objected to this.  I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences and your criminal record, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you.  The sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth.  Although you have not objected, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place.

30Application has also been made for you to pay the victim compensation for his sunglasses in the amount of $100.  I recognise you have no income and you will be in gaol for some time but I consider that the destruction of the sunglasses is something that the victim should be compensated for.  I will therefore make the order and it will sit there until such time as you can pay it.

31The prosecutor submitted that the only appropriate sentence is one of imprisonment and provided a range of 12 to 18 months with a minimum of six to nine months.  Your counsel did not disagree with these submissions, while promoting a significant period of parole and a sentence that does not set you on the path to becoming institutionalised.

32I am satisfied that the only appropriate sentence is one of imprisonment for all offences.

33The law says that if a person commits offences while on bail the new sentence has to be served on top of the previous sentence, however I can order that there is some overlap.  You need to realise that if you offend while on bail, or later, if you are on parole and offend, the starting point is that your sentences are all added together with no concurrency.

34Because of your youth and the need to ensure that the overall time you spend in gaol is in proportion to your offending, I propose to order significant concurrency to recognises that Charges 1, 2 and the wilful damage were part of the same event, however there will be some cumulation for the handling stolen goods as it was a separate offence at a different time.

35I accept the range, effectively an agreed one, as being a suitable range, despite the seriousness of the offending, as I outlined at the beginning, because of your early plea, remorse and youth and the fact that you are currently undergoing sentence in an adult gaol for the first time.

36I will order a lower minimum period to promote your rehabilitation, should you prove eligible for parole, after completion of your current sentences.

37Yes, stand up please, Mr Scarlett.

38You are convicted and sentenced as follows:

39Charge 1, armed robbery, 12 months' imprisonment.

40Charge 2, assault, three months' imprisonment.

41Charge 3, handling of stolen goods, three months' imprisonment.

42On the summary charge of wilful damage, 14 days' imprisonment.

43The sentence imposed on Charge 1 is the base sentence. Under s.16(3)(C) of the Sentencing Act I direct that one month of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other.  That makes a total sentence of 15 months' imprisonment.

44I order that you serve a minimum period of six months before becoming eligible for parole.

45Under s.16(3)(C) of the Sentencing Act I further direct that ten months of the sentence imposed today be served concurrently with your uncompleted sentences imposed on 15 May 2013 and 23 August 2013.

46I declare that you have served 17 days in custody, not including today, and that these will be deducted administratively from your sentence.

47If you had not pleaded guilty but had been found guilty after a trial the total sentence I would have imposed is three years' imprisonment with a minimum of one year.

48Yes, just take a seat please, Mr Scarlett.

49HER HONOUR:  So could I just confirm with counsel that the orders that I have made mean - my intention is that effectively five months is added to the current sentence, which would, when added all together, mean that he has an 18 month sentence for all his offending starting from May 2013? 

50MS MALOBABIC:  (Indistinct).

51HER HONOUR:  That is all right.  So just let me go through it.  So according to the information I got earlier, his total sentence on the other sentences if 13 months from 15 May.  I have ordered ten months to be concurrent, which means there is five months to be cumulative.  Thirteen plus five is 18.  He has seven months, around about, to serve before he completes the sentences he is undergoing.  He, under the minimum period that I have ordered on this sentence, if I am right, would be eligible for parole after he has finished his seven months.

52     MR THYSSEN:  Yes, Your Honour, that would make sense.

53HER HONOUR:  So I hope that that is clear and that my orders do reflect that.  If not, as I say, I will certainly receive any further information from the parties and if necessary we can have the court reconvened.  Mr Scarlett could appear via video link if that was necessary, otherwise I can make an administrative amendment to ensure that the sentence reflects what I intend.

54     MR THYSSEN:  Yes, Your Honour.

55MS MALOBABIC:  Your Honour, if I could just confirm the summary charge that is 14 days, that is - - -

56     HER HONOUR:  Concurrent.

57     MS MALOBABIC:  Concurrent.

58HER HONOUR:  Yes, thank you.  I did not specifically say that but that is so.  I will just add that in for completeness.  I just need to sign the other orders so just pardon me.  and Mr Thyssen, I think Mr Scarlett wanted to say something to you during the course of - - -

59     MR THYSSEN:  Yes.

60     HER HONOUR:  - - - the sentence so I will let you approach him now.

61     MR THYSSEN:  Thank you, Your Honour.

62HER HONOUR:  Yes, I have signed those orders so they can be handed down.  Thank you.  Yes, anything arising?

63     MR THYSSEN:  No, Your Honour.

64HER HONOUR:  All right, well I thank counsel for their assistance.  Perhaps just for completeness I had better receive this email as an exhibit so that it is clear that that was the information that the parties had and that I had.  So the email dated 24 October 2013 at 12.17 pm will be marked as Exhibit C.

65EXHIBIT C -     Email dated 24/10//2013 at 12.17 pm.

66HER HONOUR:  Yes, thank you, Mr Scarlett.  You can be removed.

- - -