Director of Public Prosecutions v Searle
[2016] VCC 1806
•2 December 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD TYLER SEARLE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 25 November 2016 | |
DATE OF SENTENCE: | 2 December 2016 | |
CASE MAY BE CITED AS: | DPP v Searle | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1806 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – youthful offender – aggravated burglary, criminal damage, theft and related summary matters – offender with known acquired brain injury – Youth Justice Centre order appropriate
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms K. Youngson | Victoria Legal Aid |
HER HONOUR:
1 Jarrod Searle, you have pleaded guilty before me on an indictment and related summary charges. You pleaded guilty to one charge of aggravated burglary, one charge of criminal damage and three charges of theft, together with related summary charges of assault an emergency worker, unlicensed driving, drive in a manner dangerous and fail to stop after an accident.
2 Each of the charges is serious and that is evidenced by the maximum penalties prescribed by law and they are as follows:
·aggravated burglary – 25 years’ imprisonment;
·criminal damage – 10 years’ imprisonment;
·theft – 10 years’ imprisonment;
·assault emergency worker – 60 penalty units or six months’ imprisonment;
·unlicensed driving – 10 penalty units or one month’s imprisonment;
·driving in a manner dangerous – 240 penalty units or two years’ imprisonment or both and mandatory licence disqualification for at least six months; and
·fail to stop after an accident, first offence – 5 penalty units or 14 days’ imprisonment.
3 I shall now proceed to sentence you on the basis of the prosecution plea opening. It was read at the plea hearing and tendered as an exhibit. The facts as outlined were accepted by your counsel, Ms Youngson.
4
In brief, shortly before 8.00am on 27 June 2016, you attended a property at
198 Mackenzie Street West, Kangaroo Flat. Lexi McPherson and her son, Robert, together with his five year old son, were inside the home.
5 You knocked repeatedly on the door of their house. Ms McPherson woke and spoke to you through a locked door. You told her that you wanted to speak to somebody called “Paul”. She told you that there was no one by that name at the address and asked you to leave. You then proceeded to smash the front lounge window with a tomahawk and walked through the house. That constitutes Charge 2, aggravated burglary, and Charge 3, criminal damage to window.
6 You then yelled that you meant business and that you were going to look for anything valuable as you searched through the kitchen drawers and cupboards of the home. Ms McPherson ran outside and hid in her back yard and was able to call police, who arrived shortly thereafter. You were then seen jumping a rear fence of the property. You went to Weir Street, Kangaroo Flat, you knocked on the door of another person’s home. She ushered you through the house and into her back yard. You then jumped fences and you were seen running onto a construction site in Alder Street. You dropped the tomahawk and continued to run. You were then tackled to the ground by a construction worker and arrested by the police.
7 Following the arrest you were taken to police divisional van and as you were searched you leant back and kicked the hand of Constable McIntosh causing him to drop a bag of property that he was holding, and that is the uplifted summary Charge 5, assault emergency worker.
8 Police located in the bag seized from you “Pramin” tablets prescribed to Robert McPherson, and they had been stolen from the Mackenzie Street home. That is Charge 4, theft.
9 They also located a set of keys, a quantity of loose change, a credit card and pens belonging to Margaret Lane. That is Charge 5, theft. Those items had been stolen from her car that had been parked in the front of her home at Neil Street, Kangaroo Flat.
10 At that time you were living in Neil Street. When police attended your address they noted the presence of a black Mitsubishi car key and a small torch on the nature strip outside the property. It was confirmed the key belonged to a Mitsubishi Magna, registration OKE105, that had been stolen on 21 June 2016 from the carport belonging to Angela Tremain. That is Charge 1, theft.
11 Some days earlier, on 24 June 2016, police had attended 10 Neil Street and had observed you running from the rear of the address, driving away in the stolen Magna.
12 Billy Holiday, the complainant in Summary Charge 11, reported to the police that at about 1 am on 25 June 2016, he was driving his Holden ute when he noted that a Mitsubishi Magna was following him. That car was in fact being driven by you. You tailgated Holliday before you screeched your tyres and collided with his ute, damaging the tailgate and rear bumper, and that constitutes the facts of uplifted Charge 11, fail to stop after the accident.
13 Holiday was too scared to get out of his vehicle and was pursued by you for a further 5 kilometres around Bendigo. He eventually parked at the corner of Mundy Street and Pall Mall when you drove towards him, narrowly avoiding the parked ute, and that is the uplifted Charge 10, drive in a manner dangerous.
14
Upon recovery of the vehicle from Neil Street, at about 2.20 am on
25 June 2016, a police check of your licence revealed that your Victorian learner’s permit had been suspended on 12 August 2015, and that constitutes uplifted Charge 8, unlicensed driving.
15 You were arrested on 27 June 2016 and interviewed. During the course of that interview, you told the police the reason for you attending the Mackenzie Street West was to collect moneys that were owed to you by Robert McPherson and that you had taken a tomahawk with you to show him that you were not were not “fucking around”. You blamed your behaviour on the use of Xanax medication. You made admissions to stealing the various items from Ms Lane’s vehicle, stealing the Mitsubishi Magna and that you were unlicensed at the relevant time. You told police you were following Holliday because he had been hooning and it was fun to chase and scare him.
16 Mr Searle, the effect of your offending is graphically set out in the Victim Impact Statement made by Ms McPherson. She describes the real fear she has experienced following this incident. Her home is no longer a safe place. She feels she has a life without trust and security and she was in shock and fear as a consequence of your actions and both her son and grandson were also in shock and fear. Previously she had been able to work as a lollypop lady but is now unable to do so because of her reaction to this crime. She is continuing to receive ongoing psychological counselling.
17 Jarrod Searle, the impact of your offending has been profound and I have taken that into account in formulating the appropriate sentence.
18 I do note, however, that you are only aged 18 and currently you have been held on remand in an adult facility at the Port Philip Prison and this is the first time you have experienced being held in a custodial setting.
19 I have had regard to your admitted and extensive prior criminal history. There are some 14 attendances before the Bendigo Children’s Court and, of relevance, you have previous court attendances for not dissimilar offending. Over the years you have been given a variety of dispositions through the Children’s Court to assist you in your rehabilitation and there is some compliance but there is also a pattern of breach of court orders. You have had probation, youth supervision orders and youth attendance orders in the past and it would seem that the attempts at addressing your rehabilitation in the past have only been partially successful..
20 In sentencing you there is real need for the Court to provide for just punishment, denunciation and deterrence, including general and specific deterrence.
21 Your counsel sought for the Court to apply what is known as the Verdins principles to moderate the need for general and specific deterrence and to reduce your moral culpability. She submitted that you were propelled to commit this offending because you have an acquired brain injury as a result of which you lack judgment and you indulged in taking ice and Xanax in combination that led to this offending.
22 As was discussed in the plea hearing, I reject that there is any link between your known acquired brain injury and the drug taking that led to your offending. You have had a longstanding history of drug abuse, even prior to the serious car accident that occurred in 2015. Your past addiction to drugs is linked to your past criminal offending. In those circumstances I am not prepared to moderate the need for moral culpability or to reduce the need for deterrence.
23 Nonetheless, I have had regard to the fact that in May 2015 you did suffer serious injuries as a result of being a passenger in a vehicle that hit a lamp post and as a consequence you suffered serious physical injuries as well as a severe traumatic brain injury for which you now have been diagnosed as suffering an acquired brain injury. Because of your brain injury and its effects, as set out in the report of Dr Kathryn Hoskins, neuropsychologist, I accept that that would make your time in custody more difficult than somebody of normal disposition and I have taken that into account in your favour, and I have taken into account generally.
24 I have had regard to your past history and background and I accept you come from a very disadvantaged and dysfunctional family. You are one of six children and during your childhood there has been a lot of disruption. Your father is described as a violent alcoholic and under traumatic circumstances your mother separated from him when you were a toddler. Some years later your mother re-partnered and that person has acted as a father figure to you and you identify with him as your father but there have, however, been times when that relationship has been fractured because of the volatile relationship between he and your mother.
25 It is apparent from all the material that behavioural problems were not an issue early on in your development but they seem to have become more evident as you have hit your teenage years. All your early social and educational milestones were met.
26 At the end of 2010 you sought out a relationship with your natural father and began living with him but because of inappropriate behaviour towards his own children remaining in his care, the Department of Human Services intervened and you were removed from his care after you were found with a black eye at school.
27 The exposure to abuse and a failed reunification precipitated a lot of problem behaviours in your early adolescent years. You have had numerous changes of school during times of uncertainty in your family relationships. Ultimately you disengaged from school, you began mixing with wrong and inappropriate peers and you developed a growing substance use problem. You used cannabis from an early age and there is also abuse of methamphetamines and prescription drugs such as Xanax.
28 Your early adolescent years are characterised by fractious relationships with carers, conflictual, violent behaviour and it is recorded that your abuse and trauma history featured prominently in the cause of your psychological difficulties.
29 In the past you have acknowledged how your substance use disrupted your relationships and you also acknowledge that it is linked to your criminal offending. Ultimately, I have taken into account the difficulties you have experienced in your formative years, and I have taken that into account. Those conditions do not change and your situation of disadvantage has never changed.
30 I have also taken into account the opinions expressed by Dr Kathryn Hoskins, the clinical neuropsychologist. She assessed you following your severe traumatic brain injury and she noted your background of social disadvantage. She states that you would be vulnerable to influence and exploitation. When overwhelmed you would have difficulty problem solving and you would be more likely to respond with anger and aggression. She made recommendations in her report as to how to assist you in the future.
31 Whilst it is unfortunate you have been held on remand in an adult facility, it is apparent that you have made the most and utilised your time in custody productively. You have regularly attended Narcotics Anonymous at Port Phillip Prison; participated in the Youth Substance Use and Emotional Management Program successfully; undertaken some TAFE qualifications, including Certificate II, Cleaning Operations; Certificate II, General Education for Adults; Certificate I, General Education for Adults; and Certificate I, Access to Vocational Programs; and you have also completed G4S programs related to Coping Inside, so that there have been some positive benefits flowing from your remand, and that is important and it reflects upon your willingness to address your behaviour that led to your offending..
32 You have written a letter of apology to the Court, expressing your sorrow for what you have done and offering an apology to those people to whom you have wronged. You indicate your desire to pay off the damage that you have caused to anyone’s property.
33 You acknowledge the effects of drugs upon you and how it impacts on your behaviour. You express your desire to remain totally abstinent from drugs and also your desire to obtain productive work. You have stated you have reprioritised your life and you want to be a more contributing member to the community. You state that as a consequence of your experience in gaol, it has been a real eye opener, you have reflected on your past poor behaviour and you are now committed to being a more productive member of the community, who wants to work. You acknowledge that being in adult gaol has had a real impact; you say it is a really bad environment and that you really do not belong there and you never want to go back to a place like that again.
34 In sentencing you, I have had regard to your youth. You are only 18. Rehabilitation is a significant factor in formulating the most appropriate sentence. I have had regard to the very real progress that you have made whilst you undergoing remand. I accept in your current state, drug-free, you show insight into your offending behaviour and that there is real hope for prospects for you in the future.
35 I am optimistically guarded about your rehabilitation prospects.
36 You are, however, always at risk of reoffending in the event that you take up with drugs again. It is important that you focus on your past history of drug abuse and also the problems arising from your past difficult and fractured upbringing. You are fortunate in that you do have a supportive mother who is continuing to be supportive of you and she is willing to have you home with her and three of your siblings and her partner upon your eventual release.
37
You are a person who has limited formal education, having only completed
Year 7 at Crusoe Secondary College. Because of your past disruptive childhood, you have never had a chance of going further with your education, although your experience in prison has shown you do have the capacity to do so, notwithstanding your acquired brain injury.
38 Jarrod Searle, I have already said the offending is very serious and I do consider it is a serious example of a confrontational aggravated burglary, and the superior courts in this State have continually emphasised that courts must impose sentences that reflect current sentencing practices and generally there is a need to uplift sentences imposed for this sort of offence.
39 Your case is somewhat different in as much as you are a youthful offender. You have never had any time spent in adult custody before and you have demonstrated a real potential for reform and commitment to rehabilitation.
40 I have taken into account the fact that you were cooperative with police at your arrest. You made full admissions. You entered pleas of guilty at the earliest possible stage and you have made a fulsome apology to each of the victims.
41 In all the circumstances I consider there is real utility to your pleas and you have spared the State and the community the inconvenience and expense of a trial and, importantly, victims have been spared the trauma of having to come to Court to give evidence on your trial. You have facilitated justice and in those circumstances you are entitled to a discount on your sentence that is real and not illusionary.
42 I sought and obtained a report concerning your suitability for a Youth Justice order and that report has been discussed today. Notwithstanding the content of the report was very supportive of the extremely good efforts that you have made in the past and, in particular, whilst in custody in an adult facility, it is said that you are not suitable for a Youth Justice Centre order.
43 It is only a recommendation and in all the circumstances, having regard to all the features that I have identified in these sentencing remarks, I do not accept that recommendation.
44 It is apparent to me that the only reason why this has been recommended is that you had spent approximately 157 days in adult custody. It is not the case that you have had every opportunity to be rehabilitated in a Youth Justice system. You have never had to serve a detention order in a Youth Justice Centre and it is apparent to me that for a young man aged 18 with all your issues and challenges, that it is appropriate that you be offered this opportunity of serving your detention in that facility so as to maximise your rehabilitation prospects. Also that will enable you to be removed from an adult facility where you will remain at risk of having inappropriate peer associations and in all likelihood that would lead to further offending in the future. What I want to avoid is you becoming a hardened criminal. You do have real challenges and the best place for you to deal with those challenges, in my view, is the Youth Justice Centre, and accordingly, I will be making an order on that basis.
45 Could you please stand now, Mr Searle?
46 You will be convicted and sentenced to an aggregate sentence of two years in a Youth Justice Centre in respect to each of the charges on the indictment and with respect to the uplifted summary charges, Charge 5, Charge 8, Charge 10 and Charge 11, and in respect to Charge 10 I have got to make an order in respect to the licence, do I not?
47 MR CORDY: There are two charges.
48 HER HONOUR: And Charge 8.
49 MR CORDY: Yes.
50 HER HONOUR: Yes. With respect to charges 8 - - -
51 MR CORDY: Theft of car and dangerous driving.
52 HER HONOUR: Yes, so that is the theft of the car. I do not have the indictment. Let us have a look. Theft of the car was Charge 1. So if I just make an order in respect to Charge 1 and the uplifted unlicensed driving, which is Charge 8, and drive dangerous.
53 MR CORDY: Yes, Your Honour.
54 HER HONOUR: Yes. I can make the one order?
55 MR CORDY: Well, it needs to attach to both charges, Your Honour.
56 HER HONOUR: In respect to all orders.
57 MR CORDY: Yes.
58 HER HONOUR: So in respect to Charge 1, and summary charges 8 and 10, any licences that you hold are cancelled.
59 MR CORDY: Yes.
60 HER HONOUR: And you are disqualified for a period of six months.
61 MR CORDY: That covers it, Your Honour.
62 HER HONOUR: Yes.
63 MR CORDY: And just in relation to the sentence of two years, Youth Justice Centre, it is my understanding from Your Honour's earlier discussions - - -
64 HER HONOUR: It is an aggregate.
65 MR CORDY: That is an aggregate sentence in respect of all offences.
66 HER HONOUR: Yes, it is an aggregate sentence.
67 MR CORDY: Yes.
68 HER HONOUR: And I just need to make a few further orders.
Ancillary Orders
69 You have been held on remand in an adult prison for 158 days. Pursuant to s.35(1) of the Sentencing Act 1991 I direct that that be reckoned as a period of detention already served under the sentence.
70 I make the disposal order sought with respect to the tomahawk and the medications.
71 I make the compensation order in favour of Billy Holliday, pursuant to s.86 of the Sentencing Act 1991 in the sum of $1,246.01.
72 Finally, I make an order pursuant to s.464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample. Having regard to the seriousness of the circumstances of the offending I consider such order is warranted. Further, I have had regard to prior criminal history and the fact that the order is by consent and I consider the granting of the order is in the public interest.
73 So there is only one final thing I need to tell you, Mr Searle. That last order means that you will be at some time in custody be given a little cotton bud to pop in your mouth and rub on the side of your cheek, all right? And so you need to do that because if you do not the police may take the sample by way of blood sample and they may use reasonable force to enable that forensic procedure to be conducted. That will probably be done once you are transferred, all right?
74 All right, and there is no need for a s.6AAA declaration having regard to his detention order being made?
75 MR CORDY: I do not believe so, Your Honour.
76 HER HONOUR: I do not believe so. All right, so I have signed the order in respect to s.86, so that means that there is a compensation order. When you get a job you will have to pay Mr Billy Holliday for the money that I have ordered, the $1246.01. Is there anything else?
77 MR CORDY: I believe that covers it, Your Honour.
78 HER HONOUR: Good. So arrangements will have to be now made, Mr Cook.
79 MR COOK: Yes, Your Honour.
80 HER HONOUR: Yes, thank you. All right, so there is the compensation order, disposal order and I will just find the 464, and there is the 464. All right, so that concludes the matter of Searle. Thank you all for your assistance.
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