Director of Public Prosecutions v Sewell
[2021] VCC 777
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
No. CR-20-01769
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KURT SEWELL |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2021, 28 May 2021 | |
DATE OF SENTENCE: | 11 June 2021 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2021] VCC 777 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – handle stolen goods – armed robbery – category 2 offence – ‘substantial and compelling circumstances that are exceptional and rare’ for purpose of Sentencing Act 1991 s 5(2H)(e) found – young offender – post-traumatic stress disorder – vulnerability in custody – impact of COVID-19 upon burden of imprisonment
Sentence: 9 months imprisonment and an 18 month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Ferrari | Office of Public Prosecutions |
| For the Accused | Ms M Deighton | Doogue & George |
HER HONOUR:
Introduction
1Kurt Sewell, you have pleaded guilty to an indictment containing one charge of armed robbery and one charge of handling stolen goods. The maximum penalty for handling stolen goods is 15 years' imprisonment, whilst the maximum penalty for armed robbery is 25 years' imprisonment. Further, as a result of the armed robbery being committed in company with another person, it is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence, (which is not imposed in combination with a community corrections order), upon you for that offence, unless at least one of the circumstances set out in paragraphs (a) to (e) of Section 5(2H) of the Sentencing Act exists. I will return to the application of those provisions, as pertinent to this case, in due course.
2These two offences arise from separate incidents. You committed the armed robbery on 9 May 2019, when you were only 18 years and two months of age. The handle stolen goods charge arises from the police locating an item at your home during your arrest for the armed robbery some 15 months later, when you were 19 years of age. You now fall to be sentenced as a 20 year old.
Circumstances of the Offending
3The full circumstances of the offending are set out in the amended prosecution plea opening tendered as Exhibit B on the plea.
4However, in brief compass, on 9 May 2019, the 15 year old victim in this matter was riding his electric skateboard, which was worth approximately $800, along the street in Carlton. You started to run towards him with a beer bottle in your hand yelling, 'Give me your skateboard'. The victim tried to get away, but had to jump off his skateboard when a car suddenly pulled out in front of him. You then approached the victim, demanding money.
5The victim gave you $6.00 in loose change from his backpack, after which you again demanded that he give you his skateboard. The victim offered you his AirPods to try and distract you, as he did not want to give you his skateboard. You then threatened to smash the bottle you were holding over the victim's head. A bystander, Mark Camilleri, saw part of this altercation and described the victim as being scared, wide-eyed and cowering in a defensive position. When Mr Camilleri attempted to intervene, you threatened to smash the bottle in his face. Mr Camilleri then walked away and called police.
6A second offender – who is yet to be identified – then became involved in the altercation between yourself and the victim, and the two of you had the victim up against the fence in front of a house. You both used your shoulders to push the victim into the fence. The victim started yelling for help.
7Eventually the victim escaped, leaving his skateboard and remote behind. As he was running, he saw a beer bottle fly past the right side of his head. The bottle, which was later forensically linked to you through DNA evidence, missed the victim and smashed on the ground in front of him. You then picked up the skateboard, rode it along Lygon Street, and ultimately carried it into a nearby apartment building.
8On 5 August 2020, police attended at your home in Sunshine in relation to the armed robbery and executed a search warrant. During the search, a stolen Royal Enfield classic motor cycle was located in the rear yard – being the subject matter of Charge 2 – handling stolen goods.
9
You were arrested and transported to Melbourne West police station, whereupon you were charged and bailed to appear at Melbourne Magistrates' Court on
6 August 2020 for a filing hearing. You have since that time had your bail revoked, and have consequently been in custody since 30 November 2020.
Gravity of the Offending
10There is no doubt that your offending – in particular, in relation to the armed robbery – is serious offending. You committed the armed robbery in broad daylight, in a public place, in company with another person, in circumstances where your victim was a young person, who was outnumbered by the two of you. Whilst no victim impact statement has been provided in this case, it is apparent from the statement of Mr Camilleri, that your behaviour was both aggressive and scary on this day. Whilst I accept that the offending was unplanned and spontaneous, it must still be considered as an armed robbery which falls in the mid-level of seriousness for this kind of offending, and ordinarily, would require that significant weight be given to the principles of general deterrence. However, I take into account that if this offending had occurred only two months earlier, you would have been subjected to an entirely different jurisdiction and sentencing regime, and that the weight which would ordinarily be given to general deterrence should be moderated by reason of your young age, and the need to facilitate your rehabilitation.
11Insofar as the charge of handling stolen goods is concerned, I am told that you came into possession of the motorbike when you agreed to look after it at your home for another person. The legislature considers handling stolen goods to be a serious offence, reflected in the fact that it carries a higher maximum penalty than theft. In this case, the item handled – being a motorbike – was of some value. However, it was a single item and was able to be returned by police to its rightful owner. Accordingly, I am of the view that this offence falls in the lower end of the range of seriousness for this kind of offence.
Guilty Plea/ Remorse
12This matter resolved to a guilty plea at the earliest opportunity at committal mention stage. No witnesses were required to give evidence.
13Your plea has utilitarian value, saving the court and the community the expense and the time required to run a trial. These factors gain additional significance in the current climate of the pandemic and the substantial impact that COVID-19 has had on the efficient running of the criminal justice system.
14I am also satisfied that your plea of guilty reflects an acceptance of responsibility by you for your offending and also reflects remorse – a conclusion which is further supported by your comments to psychologist, Naomi Cameron, and to the assessing officer from Corrections, when you were assessed by each of them in regards to this plea.
15Accordingly, I am satisfied that your guilty plea in this matter is of considerable value and deserving of a substantial discount on sentence.
Personal Circumstances
16You were born in Queensland and are the second oldest of five siblings. You undertook Year 9 at school and then commenced casual work in landscaping.
17At 14 years of age, whilst still at school, you were abducted and severely assaulted by a group of men, one of whom was the father of a girl you had been spending some time with. You were assaulted over a period of two hours – which included you being bashed, stomped on, and made to chew on condoms – before you were able to run away and alert your parents. The incident was reported to police and two men were convicted, with one man serving a term of imprisonment.
18It is apparent from your mother's reference, which was tendered on the plea as Exhibit 2, that this was an incredibly traumatic experience for you and a significant turning point in the direction of your teenage years. Your mother reports that for months following the incident, you would not even leave the house unless you had someone with you. Once you started your landscaping job, you struggled to attend, and when you did go, she would have to drive you to work. Most of the time you could not sleep, but when you did manage to get to sleep, you would have nightmares.
19Then you began consuming alcohol and using drugs – initially cannabis, and later ice. Your mother says that when she spoke to you about your use of drugs, you told her that you were using them so you did not go to sleep at night, because whenever you closed your eyes, you would have flashbacks.
20Your use of alcohol and drugs as a coping mechanism escalated throughout your teenage years and ultimately resulted in you having some involvement with the youth justice system in Queensland from the age of 15. I note that despite your involvement with the youth justice system in Queensland, you do not have any disclosable matters either interstate or in Victoria, and accordingly, you fall to be sentenced as a young offender with no prior convictions.
21I also note that despite your downward spiral in mid to late teenage years, you did manage to engage in some casual work in landscaping, furniture removal and labouring, and completed a 20-week certificate in conservation and land management.
22In 2019, you moved with your family to Victoria, with the armed robbery occurring shortly after the move. You told Naomi Cameron, psychologist, that during the period leading up to the offending, you would consume significant amounts of alcohol, at times to the point of blacking out. You were also using cannabis and smoking ice on a daily basis. On the day of the offending itself, you said that you had been drinking, 'flat out', and estimated that you had drunk a box of Corona beers, as well as having Jim Beam. You recall some aspects of your offending – such as chasing the victim and threatening him with the bottle, but do not recall all of the detail.
23In her report, Ms Cameron offers the opinion that you meet the diagnostic criteria for post-traumatic stress disorder – which was precipitated by the trauma suffered by you during the assault when you were 14 years of age. In her opinion, the onset of your externalised and antisocial behaviours are reflective of your trauma, as is the onset of your severe substance abuse. Ms Cameron is of the view that you were suffering with PTSD preceding, during, and post your offending behaviour, and that your functioning in society has been severely impacted by your traumatic experience. Further, in her opinion, your symptoms of PTSD have been exacerbated by your unhelpful coping strategies – i.e. polysubstance abuse.
24In Ms Cameron's opinion, a term of imprisonment is likely to weigh more heavily upon you than a person without your condition. Your symptoms of hyperarousal and emotional distress are already at a higher baseline than others, and the prison environment is likely to exacerbate these symptoms, due to reinforcing your fears and anxieties about your physical safety. Accordingly, Ms Cameron is of the view that any further trauma to which you are exposed in prison, will serve to retrigger and exacerbate your symptoms.
25Ms Cameron further identified that you are unlikely to receive the specific treatment you require for your PTSD and comorbidities whilst you are in custody – especially during the COVID-19 pandemic. Moreover, given your young age, you are vulnerable to becoming institutionalised and your personality characteristics make you highly susceptible to negative peer influence in custody.
26
In sentencing you, I have taken into account, in your favour, your mental health issues and the impact that they have upon you in the custodial setting, including the risk of deterioration of your mental state. I have also taken into account
Ms Cameron's opinions as to your rehabilitation prospects and needs.
27In Ms Cameron's opinion, you will require significant support in the community when you are released, including: referral to a psychiatrist for an assessment and consideration of any pharmacological treatment; referral to a GP for a mental health care plan for you to engage with a psychologist for individual psychotherapy; and referral for one on one alcohol and drug counselling – ideally in a residential rehabilitation facility – to allow you to develop insight into the triggers, risk factors and alternative strategies in relation to your substance abuse.
28On a more positive note, Ms Cameron notes that you have a number of protective factors – including your young age, your malleable attitude – which makes you a good candidate for meaningful intervention, the support of your mother, and your contemplation regarding your need to try and reform your lifestyle to improve your future prospects.
29
This latter aspect has been reflected in a couple of ways whilst you have been in custody. Firstly, you have in the past month undertaken two 12-hour
psycho-education programs through the prison – one in relation to substance use, and the other in relation to relapse prevention.
30Secondly, since being in custody, your mother says she has noticed a change in you – you are apologetic for the problems you have caused your family and the police through your offending, and you are, for the first time, talking positively about the future. She has made it clear that when you are released, she will continue to support you, including by assisting you to go to any appointments you may need to attend.
31Ultimately, I accept that the combination of your young age, family support, and attitude and motivation towards change, do put you in a position where you have reasonably good prospects of rehabilitation – although such prospects are dependent upon you receiving support and treatment for your mental health and substance abuse issues. Further, I accept that community protection in your case is best achieved through rehabilitation, rather than through an extended period in custody.
Impact of COVID-19
32During the period that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways. You were subjected to strict quarantining procedures upon remand, and have also experienced lockdowns and the impact of various other restrictions throughout your time in custody. You have had reduced access to programs, education, exercise and employment. You have also had limited access to personal and professional visits.
33Further, I accept that being in custody during the period of the pandemic, and in circumstances where your remand has coincided with a number of outbreaks of the virus in the community, has caused additional stress for you in respect of concern for your health, should the virus spread in prison, and concern for the health of your family in the community.
34I take this added burden of imprisonment into account.
Category 2 Offence – Applicable Sentencing Principles
35As relevant, Section 3 of the Sentencing Act 1991 provides that an armed robbery is a category 2 offence if the person who commits the offence is 18 years of age or more, at the time of the commission of the offence, and the offence was committed by the offender in company with one or more other persons. Accordingly, as noted at the outset, you have committed a category 2 offence.
36This enlivens Section 5(2H) of the Sentencing Act 1991, which provides that in sentencing an offender for a category 2 offence, the court must make an order under Division 2 of Part 3, other than a term of imprisonment in combination with a community corrections order, unless at least one of the circumstances identified in sub-section (a) to (e) exist.
37Your counsel, Ms Parsons, submitted that in your case, the circumstances under paragraph (e) exist – that is, that there are substantial and compelling circumstances that are exceptional and rare, which justify in this case the imposition of a combination sentence, rather than a straight term of imprisonment.
38Ms Ferrari, on behalf of the prosecution, similarly conceded that it was open for the court to find on the material before the court, that the circumstances in paragraph (e) are made out, and submitted that if the court was so satisfied, that a combination sentence would be within range in your case.
39In determining whether the circumstances in section (e) exist, there are certain matters to which I must, and must not, have regard pursuant to s5(2HC) of the Act. I must not have regard to your guilty plea, your prospects of rehabilitation, parity with other sentences, or your previous good character (aside from an absence of prior convictions). I must have regard to general deterrence and denunciation of your conduct as having greater importance than the other sentencing purposes, and I must give less weight to your personal circumstances, than to the nature and gravity of the offence. Further, I must also have regard to Parliament's intention that, (as relevant here), a straight term of imprisonment should ordinarily be made, and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
40Ultimately, having regard to the matters in s5(2HC), I agree with both counsel that the circumstances in paragraph (e) are made out in your case through a combination of factors being:
(a) your very young age at the time of the offending, with you only just being outside the jurisdiction of the Children's Court at the time of committing the offence;
(b) your lack of prior convictions;
(c) your personal history as a victim of a traumatic assault at the age of 14 years, which has led to you suffering from PTSD and which will make your time in custody more difficult;
(d) your vulnerability in the custodial setting due to your age and mental health issues;
(e) the impact of the current COVID-19 pandemic on the conditions in custody, which are further increasing the burden of imprisonment upon you; and
(f) the gravity of the offending being in the mid, rather than high range of such offending.
41Accordingly, it is open to me to impose a sentence other than a straight term of imprisonment upon you, in this case.
Comparable Cases
42I was referred to and had regard to a number of cases where the offence of armed robbery had been committed, either by a youthful offender, or in circumstances where there were substantial mitigating factors – although not all of the cases involved circumstances which elevated the armed robbery to category 2 offending. I note that I did not have regard to these cases when assessing whether the circumstances pursuant to s5(2H)(e) were made out, but rather having found that those circumstances were made out, I had regard to them as part of the instinctive synthesis on sentence. The sentences in these cases ranged from a relatively short head sentence and non-parole period, (in the circumstances of a case where a category 2 offence had been committed, but no reason pursuant to s5(2H) had been made out), to combination sentences of imprisonment and a community corrections order, and in one case, a community corrections order on its own.
43Each of the cases I was referred to turn, as they must, on their own facts – which, as conceded by prosecuting counsel, are different from the facts in your case – and the Sentencing Judge's intuitive synthesis of those facts in light of the applicable sentencing principles. As such, the previous cases to which I was referred are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate, (although not define), the possible range of sentences available. However, ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing Submissions
44It was submitted by both your counsel and prosecuting counsel, that taking into account all of the circumstances in your case, a term of imprisonment combined with a community corrections order for the armed robbery charge, would meet all of the sentencing purposes in this case. Further, Ms Parsons submitted on your behalf, that the handle stolen goods charge, could also be dealt with by way of community corrections order.
45I adjourned the plea to have you assessed for a community corrections order. You have been assessed as suitable for such an order, with the assessor noting that you engaged in a polite manner and were open to sharing information around your offending, substance use and interactions with the justice system. It has been recommended that if I impose an order, a number of conditions be attached to that order being supervision, judicial monitoring, and three types of treatment and rehabilitation – for drug, alcohol and mental health issues. I have taken into account those recommendations.
Sentence
46Having carefully considered the various sentencing considerations raised by this case, I agree with both counsel that all of the sentencing purposes in this case can be achieved through the imposition of a combination of imprisonment and a community corrections order on the armed robbery charge, and a community corrections order on the handle stolen goods charge. Such a sentence balances the need for deterrence – both specific and general, punishment, and denunciation of your conduct; with an opportunity for therapeutic intervention which will enhance your prospects for rehabilitation, and increase protection of the community into the future.
47Mr Sewell, you will be sentenced as follows.
48On Charge 1, armed robbery, you are convicted and sentenced to nine months' imprisonment.
49In addition to the imprisonment component of the sentence on Charge 1, and also on Charge 2, you will be placed on a community corrections order, with conviction, for a period of 18 months which will commence upon your release from custody. So what that means is you have got just over two months to go with your prison. Once you have done that, that remaining bit of time, then what happens is within 48 hours of being released from custody, you are going to have to contact Sunshine Justice Service Centre via telephone within two clear working days. So what that means is if you are released on a Monday, you would need to contact them by 4 pm on the Wednesday. Does that make sense?
50OFFENDER: Yes, so I have two more months to go?
51HER HONOUR: You have got just over two more months to go, then you have got an 18 month community corrections order. I am just going to go through the conditions of that with you. So the first thing is you have got to do that report within two days of being released from custody, all right?
52OFFENDER: Okay.
53HER HONOUR: You have got to be under the supervision of a Community Corrections officer for the entire period of the order, so for the entire 18 months. You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed and you must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed. And the final thing is that I am going to put a judicial monitoring condition on this and what that means is you must re-appear at court for reviews of your compliance with the order, as directed by the court. You must attend for your first review at 10 am on Wednesday 20 October at the County Court at Melbourne. Do you understand all of those conditions on that order?
54 OFFENDER: Yes, Your Honour.
55HER HONOUR: Very well. So I have to tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on that order by Corrections and the matter comes back before me. One of the potential outcomes if you breach the order is that you may fall to be resentenced and then may face a further term of imprisonment. Do you understand that?
56 OFFENDER: Yeah.
57HER HONOUR: Very well. Given all the matters which I have told you and the conditions which apply, do you consent to undertaking that community corrections order?
58 OFFENDER: Yes, Your Honour.
59HER HONOUR: Very well. So I declare the period of 206 days of pre-sentence detention, not including today's date, as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court. So what that means is that the 206 days you have already done comes off the nine months of imprisonment that I have put in place. All right?
60OFFENDER: Yep.
s6AAA Declaration
61HER HONOUR: Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charge for which you received a term of imprisonment today, and been convicted of it, you would have been sentenced to a term of imprisonment of 30 months, with a non-parole period of 20 months. So you have received a significant discount for your plea of guilty in this matter.
62OFFENDER: Yep.
Ancillary Orders
63HER HONOUR: Pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the broken Corona beer bottle. So that means the prosecution will dispose of that, all right?
Other Matters
64Ms Deighton, I intend to note as a custody management issue that Mr Sewell suffers from PTSD and is currently being medicated for that condition. Is there anything further which you wish me to note as a custody management issue?
65MS DEIGHTON: It is also, Your Honour, his first in adult custody. He has now been there for some time, but that is the only additional matter.
66HER HONOUR: Yes, very well thank you. Are there any other matters which counsel wish to raise about the sentence or reasons for sentence?
67MS DEIGHTON: Nothing further, Your Honour.
68HER HONOUR: Thank you.
69MS FERRARI: Nothing further. Thank you, Your Honour.
70
HER HONOUR: All right thank you Ms Ferrari. All right, so what will happen
Mr Sewell is that the paperwork for that community corrections order will actually be forwarded out to you at the prison and you will be asked to sign that paperwork, that community corrections order. I am assuming that that will happen sometime later today. The most important thing of course though is to remember that as soon as you are released from custody, you need to make that phone call to Corrections within that 48 hours of being released, so that you can get your Corrections order started, all right?
71OFFENDER: Yep, that's fine.
72HER HONOUR: All right and then I will see you in October. Corrections will give me a report as to how things are going and we will have a chat in October about how everything is going and hopefully, things will have been going smoothly and that you will have some things in place that you have been able to do, all right?
73OFFENDER: Yep too easy. Thank you.
74HER HONOUR: Very well, wonderful. Thank you.
75OFFENDER: Thank you.
76HER HONOUR: All right if there is nothing further then we will adjourn the court.
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