Director of Public Prosecutions v Sherry
[2014] VCC 633
•8 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-02438
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER SHERRY |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 May 2014 |
| DATE OF SENTENCE: | 8 May 2014 |
| CASE MAY BE CITED AS: | DPP v Sherry |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 633 |
REASONS FOR SENTENCE
---Subject: Criminal – plea – sentence
Catchwords: Abhorrent crimes against social order – high criminality classification – crimes committed whilst on parole – no history of violence – drug abuse – stimulant use disorder – valuable written references – family support
Legislation Cited: Crimes Act 1958 - Criminal Procedure Act 2009 - Sentencing Act 1991
Cases Cited: R v Ibbs (1987) 163 CLR 447, 452
Sentence:Total effect state term of imprisonment of 7 years with a minimum non-parole period of 3 years. A fine of five penalty units and cancellation of licence for 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D'Arcy | |
| For the Accused | Ms. L. Ristivojevic |
HIS HONOUR:
1Mr Peter Sherry, you have pleaded guilty to three charges on Indictment CR1302438, such involved a spate of criminality on the night of Tuesday, 24 September 2013.
2Time wise, it started with Charge 3, which was committed at 3.30am, which was the theft of petrol of the value of $103, to fill a Lexus being driven at that stage by Mr Sherry. The purpose, of course, was to provide fuel for that car, which was to take you to the various scenes of the matters that took place thereafter.
3The most serious offence, which is Charge 1, took place at 4.45 that night. It was an armed robbery in which an Audi sports car, owned by Nadar Taleb, was stolen by way of an armed robbery committed by Mr Sherry and his compatriots, by way of the production by Mr Sherry of a meat cleaver and, one of his companions of a knife. Such is an offence against s.75A(1) of the Crimes Act 1958, for which Parliament prescribes a maximum period of imprisonment of 25 years.
4In regard to matters that a Court looks to in sentencing, it has been decreed by the Court of Appeal that the first matter one looks at is the maximum sentence prescribed by Parliament. The purpose of that sentence is obvious, that crimes of this sort are considered by the community to be abhorrent and to be against the social order, and as a result thereof, Parliament has prescribed such a harsh penalty. I should point out that, but for a life penalty, which can be prescribed for murder or drug dealing, that is the highest penalty in the Crimes Act.
5The next offence thereafter in time is Charge 2. It took place at 5.45 and involved again a car; this time not an armed robbery, but a robbery involving one Patricia Dowling who was a chauffeur in the process of carrying out her work close to the airport at Melrose Drive when she was set upon by the prisoner and her Holden Caprice was stolen. The penalty prescribed for that of robbery, as against armed robbery, is one of 15 years.
6They are the three charges in the indictment. The fourth matter which the court is dealing with, with the consent of Mr Sherry, is a summary matter brought to the Court pursuant to s.145 of the Criminal Procedure Act, and that is the driving of a car in a manner dangerous. The penalty prescribed for that is one of 240 penalty units or two years gaol, and there is a mandatory six months cancellation of licence.
7The bland statement, which I have just made, describing these offences underscores their seriousness. It is to be remarked that on 14 December 2011, Mr Sherry had been sentenced to a period of imprisonment of two years and three months with a minimum of 16 months on a charge of kidnapping. Mr Sherry had been released on parole from that matter on the 14th day of April 2013 and in the September of that year he is committing these serious offences. I might make the point that he was breached on his parole, as I understand it, not for these crimes, as there was already a warrant out for his arrest; he was breached for a failure to comply with the conditions of the parole.
8By consent of both counsel, the opening read to the Court by the learned prosecutor was tendered as a correct summary of the facts of this matter. Insofar as the charge of armed robbery is concerned, the Lexus that I have spoken about, into which the petrol was put, was driven to the intersection of McCracken Street and Keilor Road in Essendon. At that intersection is a McDonalds restaurant where, at 4.45, Nadar Taleb, aged 20, and friends of his, Madeline Dwyer, aged 18 and Taylor Chant, also aged 18, were in the McDonalds car part in that car. The Audi was parked in a spot closest to Keilor Road. Dwyer was sitting in the passenger seat, Taleb and Chant were sitting on the ground next to the car.
9Mr Sherry and his two companions jumped out of the Lexus, ran towards Taleb and his friends. Mr Sherry was wearing a dark cap, the other two were wearing balaclavas. Mr Sherry ran up to Mr Taleb and was holding a meat cleaver. He shouted, "Give me the fucking car". Taleb held his hands up and, not surprisingly in the circumstances, said, "Take the car", and that is exactly what Mr Sherry did.
10As part of the process, one of the other men, who was in a balaclava ran up towards Ms Dwyer, again, told her to, "Get out of the fucking car". He had a knife, the blade of which was described by her as she, in her statement, said she felt like she was going to die. She got out of the car and ran towards a nearby house. Mr Sherry and one of his male companions got into the Audi and drove it off. The other male returned to the Lexus and drove in the same direction. The seriousness of this charge is demonstrated simply by that recitation.
11Not satisfied with that serious criminality, approximately an hour later, Patricia Dowling's car was stolen. I think I have given the full circumstances essentially in regard to that. In this case, it was the Audi that was utilised. Mr Sherry got out of the Audi, walked towards Ms Dowling's car. Ms Dowling thought that he was holding something behind his back. He said, "Get out". He was aggressive. He, when she resisted again, said to her, "Get out, I won't tell you again", and she was frightened in those circumstances. She got out of the car when he went to grab her. She asked if she could keep her phone and he just said, "Get out". Her handbag was in the car. It contained her phone, an iPad and approximately $350 in cash.
12The subsequent summary offence perhaps is indicative of Mr Sherry's state on this night. The Caprice was taken to a vacant block. The radio transmitter was removed from the car and while this was happening, the police attended and a chase ensued. During that chase, there were obviously dangers as a result of the type of chase and the speed involved, not only to Mr Sherry, but to the police involved. Eventually Mr Sherry jumped out of the car. He was at that stage close to the freeway and, in fact, ran to the centre barrier of the freeway, jumped over the barrier and shortly thereafter was hit by a north-bound vehicle. He was ultimately arrested after a short struggle. He received injuries as a result of that, which are demonstrated in the photographs that are before the Court and, in relation to the armed robbery, the meat cleaver referred to was found in the car.
13I am told by the learned prosecutor that neither of the victims wish to lodge a victim impact statement in these circumstances. Perhaps, given the description that I have just expounded on, that is not surprising. It should not be underestimated that the circumstances need to be placed in perspective, and one of those aspects is indeed the size of Mr Sherry himself. Irrespective of what his counsel says about the impact upon himself physically of his addiction at the time, he still has a height and width of body which would have made these circumstances quite terrifying for the victims in this matter.
14It is necessary in any sentencing process for the objective criminality of the offences to be assessed. That is done essentially by way of experience and placing such criminality on the scale of heinousness as referred to by the High Court in R v Ibbs (1987) 163 CLR 447, 452. I have no hesitation in concluding that this behaviour is high on that scale. The criminal behaviour in Charges 1 and 2, can only be described as outrageous and such as to call for condign punishment. The behaviour in the summary offence was, as I said, not only dangerous to Mr Sherry himself, but the police involved in the chase.
15Mr Sherry has served - what is the number of days? Is that agreed, as of today? It was two twenty - - -
16MR D'ARCY: But it was the reclaimed parole, Your Honour.
17HIS HONOUR: Yes, but that is over now.
18MS RISTIVOJEVIC: Not until (indistinct).
19HIS HONOUR: Isn't it?
20MR D'ARCY: Yes.
21HIS HONOUR: I thought he was - I apologise.
22MR D'ARCY: It was 202 days, I think, when we were here last.
23HIS HONOUR: He was released 14/4 - I'm sorry - he's to be released, isn't it 2/3/14? He was sentenced to two years and three months on 14/12/11. Doesn't it expire - Mr Sherry probably knows. Have you got a release date.
24PRISONER: 23 August.
25MS RISTIVOJEVIC: Yes, it's all in the notes.
26HIS HONOUR: I apologise.
27As detailed, Mr Sherry, having been breached on his parole, has been back serving his penalty and his release date is 23 August of this year. The plea, given that these circumstances occurred in September of last year, clearly was entered at the earliest possible time. I accept insofar as Mr Sherry is concerned, that that is an indication of true remorse by him for being involved in this criminality. There were disposal orders sought which I have signed. Insofar as the plea entered on his behalf by Ms Ristivojevic, for the purpose of identity only, I will make that as an exhibit for identification an Exhibit 3. I don't think we did it earlier. Just in case there is any need for that.
28EXHIBIT 3 (For Identification) - Submissions of Ms Ristivojevic.
29Insofar as Mr Sherry's prior offences are concerned, apart from the kidnapping, which related to a personal circumstance, as I understand it, a perceived threat to a relative, it is clear that essentially his background is that of a thief involved in motor offences. However, specifically, he has a penchant for the stealing of cars, and has three priors for that matter. There is, however, the point made by his counsel that he has no history for violence of this type.
30Insofar as the matters put to me by counsel, he was 26 at the time and I think, is it, 27 today?
31MS RISTIVOJEVIC: Today.
32HIS HONOUR: The background and difficulties within the family were described to me and indeed we had his father give what was, I thought, valuable evidence to the Court. His father's issues have obviously been difficult for the whole family, and in particular for Mr Sherry. His father, I think naturally, takes some of the blame for his son’s dilemmas. It seems to me that is not appropriate. The blame clearly rests with your son's abuse of drugs, in my view. However, you are much closer to the scene than me, and I accept your comments.
33Mr Sherry has been a person who, until he became essentially addicted to substances, was a good worker. He had a plasterer’s ticket and was prepared to work additional jobs to get himself forward. Unfortunately substance abuse became very much part of his life and indeed led to the sentence, for the kidnapping offence. When he was released from prison, as indicated by his father, he was thought by the family to be doing very well. Unfortunately, he had an accident and lost the job. His dependency came about again, and that is the background to this what can only be described as "a mad two and a half hours of criminality" that he was involved in.
34Tendered by counsel on his behalf was the report of the Central Melbourne Psychology Organisation, that of Mr David Ball, forensic psychologist. That report was dated 29 April 2014 and is Exhibit 1. It is clear that in the history given to Mr Ball, the drug issue, in particular by way of their effect upon Mr Sherry, have been of some significance since the age of 20. What is also clear is that on the mental state examination there was no history or evidence of any mental illness. There is no evidence of any cognitive impairment on clinical interview. Mr Sherry's IQ falls within the normal range. He has, therefore, no physical impairment to his capacity to exercise good judgment and, as I say, his priors do not evoke the seriousness of these offences. As Mr Ball said, Mr Sherry possesses insight into his offending and was generally insightful into his own psychological functioning, he acknowledged that his good judgment quickly evaporated when affected by substances and that he rapidly relapsed into substance abuse in the face of crises.
35Mr Ball described the history of drug use. That seems to be essentially multi-substance. Mr Sherry said to Mr Ball that such addiction has dragged him down as a person, made him do things "that I'd never do sober", affected his relationships and "stressed my family". I think everyone would agree with those statements, and that seems to be consistent with the manner in which Mr Sherry has come before this Court, fully understanding the position he has brought himself. He has, however, stated that he, since being back in gaol he has been drug-free. That is something of particular note, given the background. In so far as diagnosis is concerned, it is clear that at the time, despite no clear issues of mental illness or matters that would normally affect his capacity to exercise good judgment, he was suffering, as described by Mr Ball, from a stimulant use disorder.
36As I said during the plea, it seems to me that insofar as Mr Sherry is concerned, he is a person totally unsuited to abuse of any substance, much less ice, and clearly, while I note the comments put to me as to your rehabilitation, Mr Sherry, you know as well as I do, and perhaps you know far better than me, that there will be no rehabilitation for you while you are in any way involved in drugs. Clearly you are a person who must rid yourself totally of drugs, otherwise your path is very clear.
37Counsel also tendered the valuable references insofar as Mr Sherry was concerned. They involved not only the personal written reference of his father, but the evidence that I heard. They involved his grandfather, who described himself in the reference as his "still proud grandfather", his uncle and another related family member. They were references of value. It seemed to me they were all equally sensible. They spoke of your otherwise good values and what you had done in your life and the impact that drugs has wrought upon you.
38It is, of course, always difficult in taking into account those factors put to me by your counsel and, in particular, your relative youth. Even though you turn 27 today, that is still essentially a relatively young age. You have, insofar as your family, continued support. You have stable residence with your family. As indicated, you are intelligent and have motivation to work. There is what can be seen as a favourable prognosis for you from the psychologist, again dependent, as I said, by way of you ridding yourself of drugs. Balanced against that, of course, must be the serious nature of these offences and, as I said, the need for a sentence which reflects such seriousness.
39One of the matters I sought to look at was the sentencing statistics. The most recent in regard to armed robbery is No.122, which reflect the period from 2006/07 to 2010/11. Like any series of statistics, they are only of general assistance. However, to the extent that they would indicate a median sentence and those statistics suggest a median sentence of some three years, what that means is that 50 per cent were sentenced to under three years and 50 per cent over, in my view, given the seriousness of this nature, such a median sentence would not be appropriate in this case. The classification of the objective criminality, as I have already said, is high. The aggravating factors are that this was an attack on the public late at night. It was committed in a public car park and in the company of two other disguised persons and in circumstances which, as I have indicated, were quite terrifying. The inane behaviour in burning the Lexus, which I have noted on a number of occasions before me, ostensibly so that there are no prints left, can simply be described as that. However, I want to say specifically that I do not take that into account in the sentencing in this matter.
40Now, I do apologise in this matter, I am going to have to retire for just some time. It is necessary, Mr Prosecutor, for s.14 to apply in this case, isn't it?
41MR D'ARCY: Yes - - -
42HIS HONOUR: No, no, specifically s.16(3B), because he is serving out his term.
43MR D'ARCY: Yes.
44HIS HONOUR: So it has to be subject to my discretion.
45MR D'ARCY: To fix the minimum?
46HIS HONOUR: Yes. No, no, it has to be on top, because it was committed while on parole.
47
MR D'ARCY: Yes, that's right. I think that was addressed to Your Honour
in - - -
48HIS HONOUR: It was, but, as I say, having the operation of 16(3B) did not apply because I was of the conclusion that he had served his term.
49MR D'ARCY: Yes, I see.
50MS RISTIVOJEVIC: No, head sentence.
51HIS HONOUR: I do apologise, but I am going to have to just give myself five minutes to reassess that. I do apologise, Mr Sherry, but it's obviously in your interests that I look at that factor, all right?
52(Short adjournment.)
53HIS HONOUR: Mr Sherry, I do apologise, the mistake I made was forgetting that you had been out for seven months. I just did the maths from the day you were sentenced, two years and three months, but I did not take the period that he was actually on parole, which is seven months. So if you subtract the seven months in, that's why he's still serving. I just did the maths from the sentence date, so I do apologise.
54Mr Prosecutor, what that brings into operation of course is the provision of Parliament that s.16(3B) of the Sentencing Act that says,
"Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence",
which is this sentence,
"must, unless otherwise directed by the Court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he may be required to serve".
55MR D'ARCY: And, as I understood my learned friend's submissions to Your Honour last week, she did not argue against the application of that.
56
MS RISTIVOJEVIC: No, I didn't, Your Honour, and if Your Honour recalls, I was pitching in regards to the totality argument of stepping back and looking at the overall circumstances of incarceration of Mr Sherry, that is that this parole period that he is to serve and then obviously the sentence that Your Honour imposes today is cumulative, so stepping back and looking at that
-taking the totality approach.
57HIS HONOUR: Yes.
58MR D'ARCY: So as I follow it, Your Honour, there were no exceptional circumstances relied on so that - - -.
59HIS HONOUR: No exceptional circumstances argument put.
60MR D'ARCY: Yes, that's right.
61HIS HONOUR: I have taken that into account and I thank you, Mr Prosecutor, for alerting me to that situation, because obviously I had to take that into account on the issue of totality and I now have.
62Mr Sherry, what that really means is this; just so you understand it; what Parliament has prescribed is that where you commit an offence on parole, any sentence that I give you today must be served, unless there are exceptional circumstances, after you have finished your current term, OK? Did you tell me the figure was 23 August. So Parliament prescribes that this sentence must start after that time. The argument put to me by your counsel was that, given those circumstances, albeit that is the direction of Parliament that I am required to follow, there is still on the issue of totality, given your age and the circumstances that have been put to me, a matter for me to take into account on the totality of sentence that you will have to serve, taking into account that you first have to finish the current sentence and then you serve mine. OK? And I have done that.
63As I say, the sentence of a person of your age with the background that you have, taking into account the particular impact of drugs upon you and the fact that they have clearly led, as you have described yourself, to this situation, is to be balanced against the need for an appropriate sentence for such serious offences, and such is never easy However, taking into account all of those matters, in particular the matters that I have just referred to, I sentence you as follows and ask you to stand, please.
64On the first charge of armed robbery, I sentence you to a period of imprisonment of six years. On the second charge of robbery, a period of imprisonment of four years. On Charge 3, the charge of theft, a period of imprisonment of six months. Insofar as Charge 1 is concerned, taking that as the head sentence, I would cumulate one year of the sentence prescribed in regard to Charge 2, making a total aggregate period of imprisonment imposed on you of seven years.
65In your particular case, where the issue of totality and a recognition of your youth and the ever-present hope of the Court for your rehabilitation has most impact is that I have determined that the minimum sentence that you must serve before you will be eligible for parole from this new sentence, is a period of three years. As to the summary matter, I simply impose a fine on you of five penalty units and impose the mandatory six months cancellation of your licence which will occur from today's date.
66I should indicate, pursuant to provisions of s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty, the sentence that I would have imposed upon you would be a period of nine years and three months, with a minimum period of four years and six months.
67What that means, as far as you are concerned is that after 23 August, you will have a minimum period to serve of three years, before being eligible for parole. Any questions in regard to that?
68MS RISTIVOJEVIC: No, Your Honour.
69HIS HONOUR: Mr Sherry, good luck, that's all I can say, and I hope you rid yourself of drugs. It's obviously been a dramatic effect on your life and your family.
70You can take the prisoner away. I will stand down before the next matter.
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