Director of Public Prosecutions v Smith
[2016] VCC 1014
•18 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00527
CR-16-00528
CR-16-00652
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ACE JAMIE LEE SMITH |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2016 | |
DATE OF SENTENCE: | 18 July 2016 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1014 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | OPP |
| For the Accused | Mr R. Lawson | VALS |
HIS HONOUR:
1 Ace Smith, you have pleaded guilty to charges on two separate indictments. You have pleaded guilty to one charge of armed robbery and seven charges of theft on Indictment Number G10069071. You have pleaded guilty to one charge of aggravated burglary and one charge of common law assault on Indictment Number G10069027. The maximum penalties for the offences are as follows:
· Armed robbery: 25 years' imprisonment;
· Theft: 10 years' imprisonment;
· Aggravated burglary: 25 years' imprisonment;
· Common law assault: 5 years' imprisonment.
2 I have heard a summary of the offending, and it is not my intention to repeat the whole summary. It is Exhibit A in this hearing.
3 Briefly, Charges 1 to 6 on Indictment Number G10069071 occurred between 18 October 2015 and 4 November 2015. Charges 2 to 6 relate to the theft by you and the co-accused Accaputo of motorbikes from various places throughout metropolitan Melbourne.
4
Charge 1 is an armed robbery at Southbank when you got out of a vehicle that was stopped at a traffic light and approached a motorcyclist, Mr Connors, who was parked behind you. Accaputo also got out of the car. You approached
Mr Connors carrying a motorbike helmet. You told him to get off his bike and then immediately used the helmet to hit him in the head.
5 At the same time, Accaputo tried to push the victim off his bike. The victim tried to ride away and the driver of your vehicle, Molfese, reversed into the victim knocking him off his bike. The victim suffered a deep cut to his left finger.
6 You and Accaputo picked up the bike and attempted to wheel it away. The victim managed to grab the bike and you and your co-accused ran off. Molfese drove away.
7 The remaining two charges on this indictment involve you stealing alcohol from two different liquor stores in Swan Hill on 21 December 2015.
8 The victim of the armed robbery has provided a victim impact statement in which he details the loss he suffered as a result of your criminal acts. Because it took some time for his bike to be repaired, he had to work fewer hours with a subsequent loss of income and in addition, he lost his confidence and love for riding. He also suffered an injury to his left hand, which made it difficult for him at work.
9 The second indictment refers to an aggravated burglary and assault that occurred at South Melbourne on 8 November 2015. On that date, you were again in the company of Accaputo and Molfese. The three of you, together with a fourth unidentified person, forced your way into an apartment occupied by the victim Mr Abalos.
10 Accaputo was carrying a curved wheel brace and Molfese was carrying a knife. You dragged Ms Jones from the apartment and kept her outside in the hallway. Accaputo and Molfese assaulted the victim. Accaputo hit him with the wheel brace and Molfese stabbed him.
11 You all apparently believed that the victim had stolen one of the bikes that you had stolen. Accaputo and Molfese told him that if he did not return the bike the next day, they would come back and shoot him. You all then left the building.
12 The victim of this offending was taken to the Alfred Hospital where he received treatment for two stab wounds to his upper right arm, one stab wound to his right side rib cage, one stab wound to his left ear, one stab wound to his left upper arm, one stab wound to his left buttock and one stab wound to the top of his skull.
13
You were arrested and interviewed on 7 January 2016. You have been in custody since that date. You made admissions to the police and explained that you knew Accaputo from your time in prison and that you felt pressured to participate in the offending. You said that you were taking a lot of ice and drugs at the time. You said that you did not participate in the assault on the victim of the aggravated burglary because you hurt your leg some days earlier and you did not want to further injure yourself. You admitted seeing
Mr Molfese using the knife in a stabbing motion.
14 Mr Smith, this is very serious offending.
15 First, you and Accaputo were involved in an organised racket for stealing motorbikes.
16 Secondly, on 4 November, you determined not only to steal a motorbike but also to do so in an extraordinarily brazen way by attacking the rider while he was stationary at a set of lights.
17 Finally, a few days later, you and your colleagues forced your way into a man’s apartment and assaulted him. It must have been a terrifying experience for the victim. Miraculously, he seems to have avoided serious injury even though he was attacked with a wheel brace and stabbed a number of times.
18 This offending requires stern denunciation. General deterrence and just punishment are also central sentencing considerations.
19 You have a significant prior history in the Children’s Court and the Magistrates’ Court. Various orders have been made including community corrections orders, sentences of detention in a Youth Justice facility and sentences of imprisonment.
20 In these circumstances, specific deterrence and protection of the community are also relevant sentencing considerations. Your current offending is a concerning escalation of your previous criminal behaviour.
21 I now move to matters relevant to your background.
22 You are 25 years old. You were born in Queensland on 12 October 1990. Your family moved to Shepparton when you were very young. Your parents separated when you were seven years old and you continued to live with your father. He passed away when you were 11 years old and you were then reunited with your mother.
23 You told David Ball, a forensic psychologist, that there was no family violence, mental illness, criminality or significant poverty among family members during your childhood. However, when you were 15, you left the family home to live with members of your extended family.
24 You suffer from an intellectual disability. In 1997, when you were seven years old, you were assessed by Ms Maria Heenan, a psychologist from Oz Child.
25 In March 2001, Disability Services received a referral for an eligibility assessment and a request for behaviour management. The deputy principal of your local primary school supported this request. In a letter dated 3 April 2001, she noted that you were unable to make judgments about right or wrong and that you were often encouraged to engage in inappropriate behaviour by other children. You were transferred to a special school. You did not do well at school. Your numeracy and literacy skills are limited.
26 In November 2001, you were declared eligible to receive services from Disability Services under the Intellectually Disabled Services Act 1986.
27 In February 2002, case management was closed following a request from your family. You were referred to the Futures for Young Adults Program and you disengaged before completing the program.
28 In May 2009, Mr Ron Thompson, psychologist, reported that you were functioning within the borderline range of intellectual disability.
29 In 2009, 2010 and 2013, you were placed on community corrections orders that included a condition that you participate in the services specified in a Justice Plan. Unfortunately, you did not engage with the supports that were offered.
30 Alcohol and drugs have been a problem for you. You told Mr Ball that you commenced using alcohol and cannabis when you were 12 years old. In your late teens, you started to use methylamphetamine. At the time of your current offending you had been using ice heavily.
31 When you spoke to Mr Ball, you showed insight into the reasons behind your offending. You acknowledged the negative impact of your drug use and you expressed a desire to participate in rehabilitation.
32 I now move to the matters in mitigation.
33
You entered a plea of guilty to the charges on Indictment G10069027 on
6 April 2016. This was at the committal mention. You pleaded guilty to the charges on the second indictment at a committal on 19 April 2016. No witnesses were required to give evidence.
34 I am satisfied that you have entered early pleas of guilty. This has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. I also accept that you are now sorry for your offending. You will be given credit for all these matters.
35 I am satisfied that you were not the mastermind behind the motorbike thefts. You have an intellectual disability and your co-offender was much older than you. You are a follower, not a leader and although this does not excuse your criminal behaviour, it does allow me to say that your role was not as significant as the co-offender, Accaputo.
36 In relation to the aggravated burglary, I note that you were not armed with any weapon when you entered the premises. You did not directly participate in the assault upon the victim. It was the two co-offenders who wielded the weapons that injured the victim.
37 I am also satisfied that your intellectual disability means that jail will be more onerous for you than it would be for someone without such a disability and your sentence will be moderated accordingly.
38 You consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a “sentencing conversation.”
39 It was obvious to me from the way you participated in the process that you were sorry for what you had done and that you do have some insight into the problems in your life that you need to address. I give you credit for your participation in the Koori Court process. The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in the process is not easy. Indeed, it is challenging and your active participation in the process is a factor that mitigates punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
40 You are still a relatively young man. Rehabilitation would normally be an important and central sentencing consideration for someone of your age. Your criminal history and the seriousness of this offending mean that rehabilitation, whilst still relevant, is of less weight than it would otherwise have been.
41 Your past history, the escalation in your offending and your past difficulties in engaging with support services make me guarded about your prospects of rehabilitation. However, your constructive participation in the Koori Court process does give some cause for hope. If you were willing to follow through on what you said in court, namely engaging with support services and remaining drug free, your prospects of rehabilitation would be greatly enhanced.
42 In determining the appropriate sentence, I take account of the fact that this will be your first lengthy period of imprisonment. I must also ensure compliance with the principle of totality.
43 Mr Smith, will you please stand?
44 On the charges on Indictment Number G10069071, you are convicted and sentenced as follows – Charge 1, armed robbery – two and a half years' imprisonment; Charges 2 to 5 – 12 months' imprisonment on each charge; Charge 6 – 6 months' imprisonment. On Charges 2 to 6, all licences are cancelled and you are disqualified from driving for a period of two years. On Charges 7 and 8 – one months' imprisonment on each charge.
45
I order two months of the sentences on Charges 3, 4 and 5 be served cumulatively upon each other and cumulatively upon the sentence on
Charge 1. This makes a total effective sentence on this indictment of three years.
46 On the aggravated burglary charge on Indictment Number G10069027, you are convicted and sentenced to three years' imprisonment. On the remaining charge, you are convicted and sentenced to 12 months' imprisonment.
47 I order six months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1. This makes a total effective sentence on this indictment of three years and six months.
48 I order that 12 months of the sentence on Indictment Number G10069071 be served cumulatively upon the sentence imposed on Indictment Number G10069027. This makes a total effective sentence on all matters of four years and six months. I fix a minimum term of three years before you will be eligible for release on parole. I declare that you have served 193 days pre-sentence detention.
49 Had you pleaded not guilty and been found guilty after trial, I would have convicted you and sentenced you to a total effective sentence of seven years with a minimum term of five and a half years.
50 I make an order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth. I make the order because of the seriousness of the offending, your prior convictions and the granting of the order is in the public interest. If you fail to cooperate with the authorities in the taking of the mouth sample, then the sample taken will be a blood sample and the police may use reasonable force to obtain it.
51 Finally, I also make the compensation order sought by the prosecution. You can be seated there, Mr Smith.
52 So in summary, it is a total of four and a half years with a three year minimum and a declaration that you have served 193 days. You understand that?
53 OFFENDER: Yes.
54 HIS HONOUR: All right. I will just sign these orders now.
55 HIS HONOUR: The prisoner can be removed.
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