Director of Public Prosecutions v Smith

[2017] VCC 1018

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00812

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYDEN SMITH

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 July 2017
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2017] VCC 1018

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms K. Youngson
For the Director of Public Prosecutions	Mr D. Cordy

HIS HONOUR:

1You, Bryden Cordell Smith, have pleaded guilty before me to one count of home invasion, three counts of theft and one count of arson.  In addition to that there is a summary matter before me, pursuant to the appropriate legislation set out in the Criminal Procedure Act and you have pleaded guilty to an offence of wilful damage, in the amount of $200.

2These crimes arise out of circumstances which were fully outlined to the court, this morning, by Mr Cordy who appears on behalf of the prosecution and are set out some detail in Exhibit A, The Summary of Prosecution of Plea, dated 27 June 2017.

3After setting out the relevant background it is noted that the offending, with respect to Charge 1, the home invasion occurred on 19 January 2017 when you were the co-accused.

4A Mr Reid attended at a house in Marong Road Ironbark.  You knew the person there.  There was some history of an altercation between you two and you and your co-accused attended, armed with knives and a large piece of wood with nails protruding from it.  You entered the premises by means of an unlocked door and that gives rise to Charge 1, of home invasion.

5Thereafter, the occupants were challenged and advised that a robbery was taking place and you and your co-accused searched the address, asking where the drugs and money were.  And after being told there were no drugs, nor any money, various items were taken which gives rise to Charge 2, of theft, of a Sony PlayStation, Logitech controller, iPad and two laptop computers belonging to Mr Bryce Fishman.

6A mobile phone and wallet belonging to Aaron Fishman, that gives rise to Charge 3.

7Charge 4 refers to the fact that you and your co-accused, left the premises in a Suzuki Swift vehicle, which was stolen from the premises.  You then went to bushlands where the car was incinerated and that matter gives rise to Charge 5, of arson.  The vehicle was completely destroyed, apparently, and the value of the motor vehicle is $18,000.

8In due course search warrants were executed at your and your co-accused homes and Mr Reid's home, various inculpatory items were found.

9You undertook a record of interview on 30 January 2017.  You made full admissions and explained the background to the offence, insofar as you were concerned and you have subsequently made a statement regarding this matter.  You have given evidence before me today, that you propose to give evidence in accordance with that statement, which you regard as true and an accurate reflection of the facts and circumstances.

10I have given significant weight to the fact that you have exhibited your remorse by choosing to do that and I have no doubt that is a difficult matter. 

11That is also referred to in the letter from your mother. Now that you have ceased taking drugs whilst you have been in custody, you have become quite a different person.

12Victim impact statements tendered in this matter and Mr Cordy has read both to the court this morning. I have no doubt each of the victims suffered in the way they have described and I have no doubt, also, that the trauma of that evening will remain with them for some time and hopefully will diminish overtime.

13Ms Youngson notes that you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.

14The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  And I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

15Further I take into account in your favour that you intimated your intention to plead guilty early to these charges and you were apprehended in the circumstances described and made ready admission to your part in the crime and I accept that your plea does evidence true remorse for your actions and of course your remorse has been exhibited in other ways as well.

16I have been told something of your personal history and your circumstances, both in the form of the plea sentencing submissions filed by Ms Youngson, which I have marked as Exhibit 1 and also, of course, in the background to the material set out in the report of Mr Warren Simmons, which is Exhibit 4.

17As is noted in the opening, you were born on 14 January 1999.  You are currently 18 and you were 18 at the time of these offences and your co-accused was born on 1 December 1997.  He is currently 19 and was 19 years of age at the time of these offences and I understand is to be before court next week in a contested committal, with respect to these matters.

18Of course, you have prior convictions which you have admitted before me this morning and they are extensive, rather sadly, in a person of your age. 

19I think it particularly appropriate to refer to the report of Mr Simmons.

20Mr Simmons, I note, sets out a very extensive, personal history.  So rather than repeat that and indeed his personal history extends, not only to your personal history, but then to your education and employment history, your relationship history, your drug and alcohol history and your medical and psychiatric history. 

21You were born in Bendigo, spend your formative years in Mildura, returning to Bendigo at age 13 having two siblings.

22She refers to turbulent upbringing and the difficulties between your parents, which of course, Mr Simmons's refer to as being a matter of some significance as well.  She refers to your drug history, which is significant, and as I say, began at a very early age and has escalated and continued ever since.

23You have been diagnosed with autism.  You struggled with education and struggle to make friends and you are registered with disability services and these matters are noted by Simmon's and I will return to that in a moment.

24Encouragingly, since you have been in prison, I think, for over 160 days or thereabouts, you have been enrolled in school, you have undertaken a driving licence course, you have undertaken a Warehousing and Dangerous Goods through the Pathways Employment Course and you are on medication for anxiety.

25I am aware that, the time in adult prison, which is where you have been held on remand, has been a source of great difficulty for you and that matter is referred to in the materials that are before me.  I have no doubt that that has been a very significant matter in your young life and I have no doubt you have no desire to reoffend.  It will inevitably mean time in the adult prison system that you are clearly ill-suited for that, given the range of your difficulties which are set out by Mr Simmons in his report of 30 May 2017.

26He notes that you have been diagnosed with mild to moderate, high functioning autism and you are a registered client of disability services.  He undertook intelligence testing and the results of that are set out on p.5.  He deals briefly with your forensic history before and setting out his opinion, and noting:

"There is a history of behavioural difficulties and it was noted that although Mr Smith is not intellectually disabled, there is a significance difference between his verbal and non-verbal scores.  Indicating that the differences in ability is unlikely to be by chance.  As such, this indicates some cognitive impairment.  Although, deficiencies in language are consistent with a  diagnosis of autism".

27He goes on and I quote again:

"There does appear to be the development of antisocial personality traits.  Although it was not felt that Mr Smith met the criteria for the disorder.  His ability to make judgements at times is impaired and certainly it was felt that his verbal reasoning skills would not be particular good.  It was noted Mr Smith has been assessed as eligible for disability services and has had a case manager, in this regard, previously.  With regard to the matters currently before the court Mr Smith readily acknowledges that what he did was wrong and expressed remorse for his action".

28It's Mr Simmon's opinion that you would benefit from ongoing involvement with disability services, including case management to assist you in dealing with issues related to autism and furthermore, you would benefit from some drug and alcohol counselling, with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies.

29You identified, not only to your mother but also, to Mr Simmon's that you are in a better frame of mind now that you have withdrawn from drugs whilst custody. 

30I do note the reference in Mr Simmon's report to the fact that the addition of antipsychotic medication does raise the issue of there being some underlying disorder and that would certainly be a matter that the authorities should explore, insofar as they are able, whilst you are in custody.  I also note, of course, the fact that he highlights your vulnerability to the influence of others.

31I should say that I have been referred to a significant range of other matters that I understand are before the magistrate next week, sitting in Bendigo.  And there is a sheet of materials, attached to which are various charge sheets, which I have read and to which I have had regard, insofar as is appropriate in noting the fact that you have been charged with a range of other offences.  Some of which may be subsequent to the current offence.

32Excuse me, it seems to me as if most are, in fact, committed prior to the current offence with which I am dealing.

33Nevertheless, as I understand the magistrate is seized of a number of matters, which of course need to be dealt with.  And I note from my perusal of the list that a significant number of them relate to diving.  Although there are matters relating to violence as well.

34I am on balance satisfied that the chances of your rehabilitation are consistent with the observations of Mr Simmons, as set out in Exhibit 4 and depend substantially upon investigations, as to whether there is some underlying cause for your wakefulness and vigilance at night.  And also, of course, the fact that you are now no longer on drugs means your autism and disabilities can be dealt with appropriately and if all of those matters can be attended then there are some reasonable prospects that you may rehabilitate yourself whilst in the youth justice system.

35With regard to your roles, the references that I have been provided with indicate to me that you were the lesser of the two offenders and you are, in my view, are to be sentenced as a follower. 

36Of course, parity of sentence does not arise because your co-offender has yet to be sentenced.

37As well as those matters personal to you, to which I have referred, including the question of rehabilitation.  I must also take into account, such matters as, deterrence and especially general deterrence which is of considerable importance in a case such as this, involving as it does, a home invasion and of course, as I have already noted, the victims have suffered considerably as a result.  And in particularly, not only emotionally but financially as they describe.

38Specific deterrence is also of importance, given the nature and range of your prior convictions at your age.  But I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be, as Mr Simmon's expresses in his ultimate paragraph and I think I should quote when he says:

"Given your history it would be naïve to expect there would not be a further risk of offending in the future, given you have some disabilities which will take some time for intervention to take some effect, if they are able to do so.  You are vulnerable to the influence of others and drifting back into substance use would make your behaviour erratic once again".

39I am satisfied it is in the interests of justice, having regard to your prior convictions and the seriousness of your offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping the swab inside your mother.  And although you have consented, if you change your mind I must inform that police may use reasonable force to enable that procedure to take place.

40These are without doubt serious offences and in all the circumstances, having had the benefit of Mr Cook's report, who has provided a suitability assessment for the Senior Youth Justice Centre, with respect to you on this day and ‑ ‑ ‑

41MR CORDY:  Your Honour, I hesitate to interrupt, Your Honour.

42HIS HONOUR:  Yes.

43MR CORDY:  But I may have mislead you before and done a search in relation to the imposition of an aggregate Youth Justice Centre.

44HIS HONOUR:  Right.

45MR CORDY:  Your Honour's not empowered to do that.

46HIS HONOUR:  Right.

47MR CORDY:  I stand corrected.  The aggregate provisions of the Sentencing Act ‑ ‑ ‑

48HIS HONOUR:  Yes.

49MR CORDY: ‑ ‑ ‑ are set out in s.9 of the Sentencing Act.

50HIS HONOUR:  Yes.

51MR CORDY:  Which relates only to imprisonment.  There are no similar provisions that relate to Youth Justice Orders.

52HIS HONOUR:  Right.

53MR CORDY:  So the situation where Your Honour will need to impose individual sentences and with respect, Your Honour, perhaps Charge 1 would cover the period ‑ ‑ ‑

54HIS HONOUR:  Yes, all right.

55MR CORDY:  ‑ ‑ ‑ that Your Honour intends the Youth Justice Centre Order to be in place for.  And other orders, concurrent ‑ ‑ ‑

56HIS HONOUR:  Yes, all right.

57MR CORDY:  ‑ ‑ ‑ for the lesser offences, would be the appropriate way to go.

58HIS HONOUR:  Thank you, Mr Cordy.

59MR CORDY:  Thank you.

60HIS HONOUR:  Yes, well in the circumstances you are convicted and sentenced as follows.

61On Charge 1, you are sentenced to three years in a Youth Justice Centre.

62On Count 2, six months.

63On Count 3, six months.

64On Count 4, six months.

65And on Count 5, the charge of arson, two arson.

66On the summary offence there will be a Youth Justice Order of one month and I propose to make no order against your licence.  All of those sentences in the Youth Justice Centre will be served concurrently.

67Yes, anything further?

68MR CORDY:  I'll just double check but I believe, Your Honour, in respect to the theft of motor car charge, there are mandatory provisions in respect of the licence.

69HIS HONOUR:  Are they?

70MR CORDY:  As I understand, on conviction for that offence.

71HIS HONOUR:  Yes.

72MR CORDY:  Your Honour, is required to cancel the accused licence and then, Your Honour, is required to set what you believe to be or what the court believes to be an appropriate period of disqualification.

73HIS HONOUR:  I'll cancel his licence and I'll disqualify him from obtaining a licence for a period of 12 months.

74MR CORDY:  Thank you, Your Honour.

75HIS HONOUR:  With respect to, I think, the Department of Justice and Regulation document of Mr Cook, I'll mark as Exhibit - I think we're up to E from memory.  Do I need to nominate, Mr Cook, with respect to my sentence of a Youth Justice Centre Order that he attend for drug and anger management or does that follow?

76MR COOK:  Your Honour, no, you don't need to.  That was just marking some of the issues that will be alerted to the Youth Justice Centre, just to explore with him.

77HIS HONOUR:  All right.  And I should say, also, of course, in terms of presentence detention, if that be a relevant concept.

78MR CORDY:  Yes, it is, Your Honour.

79HIS HONOUR:  Mr Smith, has spent - how long's he spent?

80MR CORDY:  It was 178 days, not including today.

81HIS HONOUR:  178 days in serving this and that term ought to be taken into account, pursuant to the relevant provisions of the Sentencing Act, s.18(4), as I recall it.

82Has he not pleaded guilty with respect to these matters, for the purpose of s.6AAA, I would have ordered a sentence to be served in the adult prison system for a minimum term of two years and a maximum term of three and a half years.

83MR CORDY:  As Your Honour pleases.

84HIS HONOUR:  Yes, anything further?

85MS YOUNGSON:  No, Your Honour, thank you.

86HIS HONOUR:  All right, well good luck, Mr Smith.  I hope that things keep improving for you and I hope you do your mother a bit - look after her for a change.  She sounds like she's been trying to do the right thing by you and now that you're not on drugs anymore, she obviously thinks you're behaving pretty decently.  So all you've got to do is demonstrate to Mr Cook and the other people that that's what you can do and if you can do that then the Youth Parole Board should be able to do the right thing by you.  But you need to impress them that you've really changed in the way your mum thinks you have.

87OFFENDER:  Yes, sir.

88HIS HONOUR:  Well, good luck.

89OFFENDER:  Thank you.

90HIS HONOUR:  You've got a lot of prior convictions for a young bloke so I think it's not going to look well for you if you get out next time and you commit crimes.  I mean, you know what the adult prison systems like.  You don't want to go back there, I'm sure.

91OFFENDER:  Of course not.

92HIS HONOUR:  All right, well the only way to stay out is to not commit crimes and that means not taking drugs.  Anyway, I'm sure Mr Cook and others will remind you of that from time to time but you've got to make the decision.

93OFFENDER:  No worries, thank you.

94HIS HONOUR:  All right, and don't forget your promise to give evidence next week because it all swings on you keeping that promise.

95OFFENDER:  Okay, thank you.

96HIS HONOUR:  All right, well thank you all very much for your attendance and we'll see you tomorrow morning, those of you who are still here.

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