Director of Public Prosecutions v Shaw

[2022] VCC 610

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

CR 20-01853; CR 21-00704

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN SHAW

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2022
DATE OF SENTENCE:	6 May 2022
CASE MAY BE CITED AS:	DPP v Shaw
MEDIUM NEUTRAL CITATION:	[2022] VCC 610

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW – Sentencing.

Catchwords:             Plea of guilty – Armed robbery – Theft – Relevant prior criminal history – Delay – Relatively young offender - Very strong prospects of rehabilitation – Parity - COVID-19 pandemic.

Legislation Cited:     Crimes Act 1958 ss 74(1), 75A; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:            Worboyes v The Queen [2021] VSCA 169.

Sentence:Imprisonment for a period of 2 years and 6 months with a non-parole   period of 1 year and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Wallwork	Office of Public Prosecutions
For the Accused	Mr D. Sala	Marcevski Lawyers

HIS HONOUR:

Introduction

1Jayden Shaw, you have pleaded guilty on Indictment C2013389.1 to one charge of armed robbery contrary to s 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1).

2On Indictment L10275379 you have also pleaded guilty to one charge of theft contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 1).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5At the time of this offending you were 25 years old and residing in Black Hill. Your co-accused Daniel McKay was 20 years old and residing in Delacombe.

Indictment L10275379 – Theft

6On Thursday 5 December 2019 at about 3:15pm, you attended a Coles Express service station situated at 9389 Western Highway, Warrenheip. You were driving a gold coloured Nissan Maxima sedan bearing Victorian registration plates WFA949.

7You filled the vehicle with 48.67 litres of ULP95 fuel valued at $74.42. You returned to your vehicle and drove away from the service station without paying for the fuel.  The incident was captured on CCTV. It is these facts that relate to Charge 1 on Indictment L10275379, theft.

Indictment No C2013389.1 - Armed Robbery

8At 6:15am on 31 January 2020, 18 year old Tarkyn Balzan and 15 year old Beau Farquhar were sitting on the ground at a cricket pavilion within the Doug Dean Recreation Reserve, listening to music.

9A gold Nissan with you, Mr McKay and an associate, Carl Murray inside, drove into the nearby carpark of the Reserve. You were the driver, Mr McKay the front passenger and Carl Murray was the back seat passenger.

10The three of you called out, "What are you boys doing" and “You boys got any juice?" Mr Farquhar went over and spoke with you. About 10 minutes later, Mr Balzan also approached the car and joined the conversation.

11You said to Mr Balzan, "Do you talk to cops? '' and asked Mr Balzan his age.

12Mr Balzan told you he was 18 years old and you said, "Old enough to get your phone taken off ya".

13Mr Balzan refused to hand over his phone, and Mr McKay said, "Give us your phone or I'll shoot you". Initially Mr Balzan did not take this seriously.

14Mr McKay then removed from a bag a sawn-off shotgun described by Mr Balzan as about the length of a ruler and pointed it towards Mr Balzan's head. Mr Balzan believed he was going to die.

15Mr Balzan handed Mr McKay his cigarettes and lighter in an attempt to appease him. Mr McKay, said, "Give me your phone". Mr Balzan handed over his blue Oppo AX5 mobile phone and provided his passcode when asked.

16Mr McKay, asked Mr Farquhar for his phone, but Mr Farquhar denied having one. Mr McKay, demanded that Mr Balzan tackle Mr Farquhar to get his phone. The gun was still pointed at Mr Balzan at this time. Mr Balzan heard Mr Murray say "Just shoot them, get it done with".

17Mr Balzan and Mr Farquhar ran off toward Greenhalghs Road before seeking refuge. You, Mr McKay and your associate Mr Murray drove away from the Reserve. Mr Farquhar and Mr Balzan contacted 000 on Mr Farquhar's mobile phone.

18CCTV footage was obtained from the vicinity of the offence. A light coloured gold Nissan sedan was shown near the Doug Dean Reserve shortly before the incident. 

19CCTV footage subsequently obtained from your residence at 3/2 Ida St, Black Hill shows the gold Nissan WFA949 return to the premises at 9.21am that morning. Both you and Mr McKay, are shown attending the front door at 9.24am. Police carried out surveillance on the property from 10.11am. You both left the property later that morning and two unknown males later attended and drove away in the vehicle.

20At approximately 2:15pm on 3 February 2020, you were arrested in Delacombe.

21On 5 February 2020, search warrants were executed at 14 Cromwell Street, Wendouree. Motor vehicle WFA949, the gold Nissan, was located behind closed gates. Both registration plates had been removed from the vehicle. It was seized and taken to Ballarat Police Station.

22Several latent fingerprints belonging to Mr McKay were located on the exterior and interior of the Nissan including on the driver’s seatbelt buckle.

23Mr Balzan later identified you and Mr McKay in photo boards.

24Mr McKay was arrested in Waikerie, South Australia on 28 February 2020 and was conveyed to Mildura Police station on 3 March 2020.

25You were interviewed on 3 February 2020  and made admissions to the theft of petrol. You denied involvement in the armed robbery. You said you had borrowed your brother’s gold Nissan but that at the time of the armed robbery it had been stolen. You claimed you had stayed at an address in Mount Pleasant on the night of Thursday 30 January 2020 before returning to Ida Street the following morning.

26Mr McKay was interviewed on 3 March 2020 at Mildura Police station and made no comment in relation to the allegations.

Nature and gravity of the offending

27Armed robbery is an inherently serious offence. The maximum penalty of 25 years imprisonment which Parliament has prescribed, is a demonstration of the seriousness of the crime. In this instance, Mr McKay, while in company with you produced a sawn-off shot gun and pointed it to the head of one of the victims. While pointing the gun you made the demand for the victims’ phones. Understandably, Mr Balzan was in fear for his life. Further, the third co offender Carl Murray also made a serious threat while the gun was still being pointed at the victim. While this threat is not attributable to you or Mr McKay, it forms part of the narrative and was made after Mr McKay had produced the sawn off shotgun.

28At the time of the offending, Mr Balzan was 18 years of age and Mr Farquhar was 15 years of age. They were simply sitting and listening to music when you caught their attention and ultimately committee the offence. Undoubtedly, once the firearm was produced, this would have been a frightening experience for Mr Balzan as the victim of the armed robbery, and for Mr Farquhar observing the weapon and hearing the threats. In my view in the circumstances this is a relatively serious example of this type of street armed robbery.

Personal circumstances

29You are 27 years of age and were 25 years of age at the time of the offending.

30Your parents separated when you were 10. Following the separation, your father moved to Tasmania and you have had limited contact with him since.

31You have three younger siblings, a brother and two sisters with whom you enjoy a positive and supportive relationship. You also have a half-brother from your father’s previous relationship. You currently live with your mother and your youngest sister in Frankston. Your two other siblings live nearby.

32You were expelled part way through year six at Broadmeadows Primary School. You commenced secondary school at Gladstone Park Secondary College and you were expelled in the first months of commencing year seven.

33You then attended a secondary school in Ballarat and again you were expelled. You then completed three years of secondary school at a TAFE college designed for children who had difficulties in the mainstream system. Ultimately you completed year 10 through this program.

34You then attended a TAFE college and participated in pre apprenticeship programs in carpentry and roof tiling. You have been employed for the last six years as a roof tiler.

35You are currently single however you have a son, who will turn two in July this year. Your son was born while you were on remand for this offending. While you are not intimately involved with your son’s mother, you nonetheless maintain a positive relationship with her. Your son lives with his mother and you have had regular contact with him. As a result of the sentencing indication hearing and the reality that you will be facing a further period in custody, the mother has suspended contact with your son. While this is inevitably a difficult circumstance for you, you were honest with her and you will actively seek to re-establish contact with your son upon your release.

36You do not suffer from any significant mental or physical health issues.

37You do however, have a drug and alcohol abuse history. You commenced smoking cannabis at age 15 and by the age of 18, you were using daily. You then commenced using methamphetamine which increased quickly to daily use.

38You have a relevant criminal history which commenced in 2012 in the Children’s Court. Your history includes dishonesty, drug, weapons and injury offending. You have served periods of imprisonment and have been given community based rehabilitative orders.

39In 2018-2019 you served a period of imprisonment for a number of offences including drug offending, dishonesty offending and reckless conduct endangering serious injury. During this period in custody you became drug free however upon your release you returned to the Ballarat area and relapsed. You were using daily at the time of this offending.

40Since being bailed in December 2020 you have remained drug free completing the Court Integrated Service Program (CISP) demonstrating that you can remain drug free with assistance. Two CISP reports were tendered and I have taken the contents of those reports into account.

41Your mother, Sandy Parkinson gave evidence at the plea hearing. She confirmed that you have lived with her since being bailed and that you have complied with your bail conditions, which has included a curfew. Ms Parkinson stated that you have kept out of trouble, you have been working full time and that she has not seen any evidence of drug use. Ms Parkinson also stated that she remains supportive of you and that you are able to return to live with her upon your release.

Sentencing considerations

42First I take into account your pleas of guilty. This matter was initially listed for trial in November 2021 and was not reached. Pretrial argument was conducted before a different judge in May 2021. The matter then came before me at Ballarat for trial and on 1 April 2022, a sentencing indication hearing was conducted. Following that hearing, you and Mr McKay entered pleas of guilty to one charge of armed robbery. You also pleaded guilty to the separate charge of theft on the second indictment, which was always your intention. While your plea in relation to the armed robbery cannot be considered an early plea, it nonetheless carries weight. Your pleas of guilty in relation to both matters have saved the court considerable time and expense and have saved the victims from having to give evidence at trial.

43The pleas carry additional weight which must be reflected in a further amelioration in sentence, as they have been entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

44Further, the time you served on remand in 2020 was particularly onerous due to conditions in prisons arising from the COVID-19 pandemic. Prisoners were subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. While the circumstances have improved, the virus is still circulating and some restrictions remain in place within the prison community. I take these matters into account in relation to the time you have already served and the additional time you will be required to serve.

45I take into account the fact that you are still a relatively young offender being 27 years of age now and 25 at the time of the offending. However, the serious nature of the offending in this instance lessens to a degree the weight to be given to your relative youth in order to give way to other sentencing considerations such as deterrence and denunciation of your conduct.

46Turning to your prospects of rehabilitation. While you have an extensive and relevant criminal history, you also have demonstrated that you have not reoffended and have maintained a positive lifestyle whilst on bail. You were employed up until the plea hearing where you sensibly accepted that you would need to resign in order to serve further time in custody. You continue to be drug free since your completion of the CISP program. You have a young child and, while your son lives with his mother, you have a desire to maintain a close relationship with him. Further, you have the ongoing support of your family. In the circumstances I asses your prospects of rehabilitation as very strong.

47Undoubtedly, general deterrence must feature prominently in the sentencing calculus. A message must be conveyed that this type of offending targeting young people on the street must be deterred. Given your criminal history and past drug use, specific deterrence must also carry weight.

48As was discussed at the sentencing indication hearing, applying the principles of parity, when formulating a head sentence in this matter in all the circumstances I came to the view that the same sentence should be given to you and Mr McKay. On the one hand Mr McKay produced the weapon and thus took a more active role in the armed robbery. On the other hand, you are older than Mr McKay and you have a more extensive criminal history.

49However, despite your criminal history and the seriousness of the offending, in my view a longer than usual period of parole will offer you a level of supervision in the community and enable you to continue your rehabilitation, once granted parole.

Sentence

50Mr Shaw would you please stand.

51Jayden Shaw, on Charge 1, armed robbery, you are convicted and sentenced to 2 years and 6 months imprisonment. I direct that you serve 1 year and 4 months before becoming eligible for parole.

52In relation to Charge 1 on Indictment L10275397, theft, you are convicted and fined $500.

53Pursuant to s 18 of the Sentencing Act 1991, I declare that 319 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

54Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years with a non-parole period of 3 years.  

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