Director of Public Prosecutions v Sprague

[2016] VCC 68

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01800

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN SPRAGUE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2016
DATE OF SENTENCE:	9 February 2016
CASE MAY BE CITED AS:	DPP v Sprague
MEDIUM NEUTRAL CITATION:	[2016] VCC 68

REASONS FOR SENTENCE
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Subject:         Armed Robbery, Possess Heroin.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      Two year community corrections order.

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APPEARANCES:	Counsel	Solicitors
The Director of Public Prosecutions	Ms G. Overend
The Accused	Ms T. Hartnett

HIS HONOUR:

1Ryan Sprague, you have pleaded guilty to two charges in indictment
F-12638898.

2The first charge is a charge of armed robbery which occurred on 17 July 2015. The maximum penalty for the offence of armed robbery is 25 years' imprisonment. 

3The second charge is a charge that you had in your possession heroin, which is a drug of dependence. The maximum penalty for this offence is one year imprisonment or 30 penalty units.

4As can be seen from the penalties, this offending is serious. 

5The circumstances of your offending are contained in a summary of prosecution opening dated 2 February 2016, which was read to the court by the prosecutor.  Your counsel Ms Hartnett accepts that the summary forms a proper basis upon which I can proceed to pass sentence upon you for this offending.  It is not necessary that I here repeat what is set out in the summary, however, these sentencing remarks should be read in conjunction with what is contained in the summary. 

6At the time of offending you were living with your then partner and co-offender in St Kilda.  Both you and she were long time heroin users. Your partner had turned to prostitution, presumably to support her habit, and for that purpose, she had advertised her services on an Internet site.  The victim in this matter responded to the advertisement and arranged with your partner to come to your place of residence to receive sexual services for money.  When he attended he was soon after confronted by you and, you threatened him with a knife whilst you and your partner went through his wallet and took two ATM cards.  You demanded that the victim leave which he did in a state of panic.  I have no doubt that the victim was traumatised by what you and your partner did to him.  There was no victim impact statement tendered in evidence. 

7However, as I indicated to counsel on the plea, your offending on the charge of armed robbery must be regarded as being towards the bottom end of the scale.  On the facts contained in the summary the armed robbery was not planned by you and much of what occurred seemed to escalate in part because of a spontaneous reaction by you upon finding the victim half naked in your bed. 

8When arrested you were found to be in possession of heroin and that results in the second charge.  You are a heroin user and the drug was for the use of either yourself or your partner, and there is no suggestion that you trafficked the drug.  My sentence on that charge will be that you are convicted and discharged.

9You pleaded guilty to the charges at committal mention on 16 October 2015.  I treat you as having pleaded guilty to the charges at the first available opportunity and for that, you are entitled to a reduction of sentence.  By pleading guilty you have saved the time and cost of a contested trial and any sentence that I pass upon you must be reduced because you have pleaded guilty at the earliest available opportunity. 

10When you pleaded guilty you also admitted a limited prior criminal history.  That history commenced in July 2005 when you were aged approximately 28 years.  At that time, you were convicted of two charges of possession of drugs of dependence.  You have also been convicted of other public disorder type offences and offences caused by your dealings with police.  These other convictions arose from two other court appearances, one in 2006 and the next in 2008. 

11You are now 38 years of age and, given that you have a long-term history of drug abuse, your prior criminal history is interesting.  Firstly because it did not commence until you were 28 years of age and secondly, the kind of offences for which you have previously been dealt with are not the kind of offences which the courts usually associate with offenders who are long-term drug addicts., namely offences of dishonesty. 

12That said, I was informed by your counsel that subsequent to the offending for which I must sentence you, you committed further offences on 27 September 2015, which involved burglary and theft of credit cards which were subsequently used to obtain either property or financial advantage by deception.  It is troubling that this subsequent offending occurred whilst you were on bail for the offences that I must now sentence you for.  You were sentenced for the subsequent offending at the Magistrates' Court at Melbourne on 4 November 2015, by which time you had served 15 days' imprisonment on remand.  The magistrate imposed a sentence being time served and a community corrections order for a period of 12 months with conviction, with conditions designed to bring about your rehabilitation as a sufferer of depression and a user of drugs.  I was told and accept that you have been compliant with the conditions of that community corrections order. 

13Ms Hartnett submitted that an appropriate disposition here would be to impose a further community corrections order with conviction and conditions.  On the plea I indicated that my assessment of the case at an early stage was that this was an appropriate submission in all the circumstances. 

14I turn to your background circumstances.  You are one of two children.  Your parents separated when you were aged four.  I was told and accept that you were in the early years of your life the subject of abuse at the hands of your father who was an alcoholic. 

15Your parents separated but reconciled when you were aged about six.  They separated again when you were aged about 14 or 15 and your mother then moved with you to live on the Gold Coast in Queensland.  You did not adjust well to the relocation.  You formed an inappropriate peer group and commenced using drugs when aged about 14 and 15.  Like so many before you, you commenced with cannabis and within a short time you commenced to imbibe harder drugs such as LSD and heroin.  By age 17 you were taking amphetamines and by 20 you had acquired a heroin habit. 

16You left school at the end of year eight and have a limited education but very fortunately for you, you have always had the full support of your mother and sister. 

17When you were aged 23, your mother and sister moved to Saudi Arabia where your mother worked as a nurse.  Although she kept in regular contact with you, your life took a turn for the worse and this roughly coincides with when you first recorded a conviction. 

18I was told and accept you had periods of abstinence and detoxification but you have had difficulties ridding yourself of drugs.  You are now on the methadone program but it is early days.  I was told and accept that you are not unintelligent and you have insight into your difficulties and this might in part explain your limited criminal history. 

19When your mother returned from overseas you commenced to live with her and your sister and her husband.  This was the commencement of a good phase, because you had been homeless, living on the street while she was away.  You also sought to reconnect with your father but this did not work out.

20In 2014 you ceased living in a relationship with a woman, the relationship having spanned some 10 years.  You commenced living in a flat in St Kilda and you met your co-offender in about May 2015.  Soon after, you left the flat and the two of you commenced living with your mother, but because of the conduct of your co-accused your mother asked her to leave which she did. 

21There are no outstanding charges pending against you. 

22Ms Hartnett tendered in evidence a psychological report from Helen Barnacle, who you commence to see in May 2014 of your own accord.  You had some sessions with her and the report assists in tracing the history of your unfortunate background, all of which I have taken into account in arriving at an appropriate sentence.  Ms Barnacle is of the opinion that you suffer from post-traumatic stress disorder and substance abuse disorder.  I accept that opinion. 

23Normally in offending such as this, the sentence must reflect proper application of the principle of general deterrence.  The sentence imposed must deter others who may seek to offend in like fashion.  The sentence must also reflect specific deterrence and the court's and the community's denunciation of your offending. The sentence must also have proper regard to rehabilitation. 

24I am of the opinion that in the circumstances of this case, all of the objectives of sentencing can be achieved by the imposition of a community corrections order with appropriate conditions.  Whilst one must be guarded about your prospects for rehabilitation because you are a drug addict, I accept you appear to be well motivated and that I should not impose a sentence in the circumstances here which might only serve to dampen your motivation and harm your rehabilitation. 

25Accordingly, on the charge of armed robbery I make a CCO with conviction for a period of two (2) years with the following conditions:

·That you serve 200 hours' unpaid community work.

·Supervision.

·Treatment and rehabilitation for drugs.

·Treatment and rehabilitation for mental health.

·Treatment and rehabilitation programs to reduce offending.

·And there will be a condition for judicial monitoring every six months, which means that you will have to come back before me every six months, effectively so that I can keep a check on you, Mr Sprague.

26On the charge of possession of a drug of dependence you are convicted and discharged. 

27The prosecution seeks ancillary orders for disposal of various items and a forensics sample order.  Because the making of those orders was not opposed, and it being in the interest of the administration of justice I have signed those orders accordingly.

28Now Mr Sprague, you have come to court and received a fairly lenient sentence in a lot of way, but is a sentence designed to try to assist you in rehabilitating yourself from drugs, do you understand that?

29OFFENDER:  I do, Your Honour.  Thank you.

30HIS HONOUR:  You will notice that I have, as I have mentioned, made a condition for judicial monitoring which means that you will have to come back each six months, and we will give you a date.  You will have to come back firstly on 25 July of this year, at which time I will have a progress report from the Department of Corrections as to whether or not you are complying with the orders.  Do you understand?

31OFFENDER:  I do.  Thank you, Your Honour.

32HIS HONOUR:  Now if you do not, I am putting you on notice that I have the right to resentence you, and if you come back before me and you have not been complying, I will deal with you.

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  And it is likely that you will go to gaol.  Do you understand that?

35OFFENDER:  I do understand.

36HIS HONOUR:  And that includes complying with all the conditions and not reoffending.  You mutt not commit any offence punishable by a term of imprisonment.  Do you understand that?

37OFFENDER:  I understand, Your Honour.  Thank you.

38HIS HONOUR:  Very well.

39MS OVEREND:  Sorry, Your Honour, there's also the taking of a forensic sample order that is sought.

40HIS HONOUR:  Yes, I referred to that.

41MS OVEREND:  Sorry, Your Honour.  I thought you only made the disposal order, but there's also the warning to be given if he doesn't comply with giving the forensic sample as well.

42HIS HONOUR:  Yes, well I have made the forensic sample order and I will be making that order if you just give me a chance.

43MS OVEREND:  Thank you, Your Honour.

44HIS HONOUR:  Now I have been asked to make orders relating to the disposal of some items seized from you which were not opposed and I am making those orders, but I am also making a forensic sample order.  That means that you have to make yourself available at the police station at Narre Warren at 8 Coventry Road Narre Warren within four weeks, or 28 days from today.  Do you understand?

45OFFENDER:  Yes.

46HIS HONOUR:  The police are authorised by the making of this order to take a forensic sample from you, which is really just a swab from your mouth.  Do you understand?

47OFFENDER:  Yes, I do.

48HIS HONOUR:  Very well.

49OFFENDER:  Thank you. 

50HIS HONOUR:  Would you just come forward out of the dock, Mr Sprague?  Come up to the Bar table please, near Ms Hartnett here.

51MS HARTNETT:  Thank you, sir.

52HIS HONOUR:  Very well.  On the rising of the court, you are free to leave, Mr Sprague.  I do not want to see you back here except for judicial monitoring.  Do you understand?

53OFFENDER:  I understand.  Thank you, Your Honour.

54MS HARTNETT:  Thank you, Your Honour.

55HIS HONOUR:  9.30 tomorrow.

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