Director of Public Prosecutions v Strickland
[2020] VCC 519
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-19-00578
Indictment No. J12678489
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARYL STRICKLAND |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | 1 August 2019, 17 January 2020, 20 April 2020 |
| DATE OF SENTENCE: | 30 April 2020 |
| CASE MAY BE CITED AS: | DPP v STRICKLAND |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 519 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery - burglary – theft – obtaining property by
deception - plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), ss 74, 75A, 76, 81
Sentencing Act 1991 (Vic) s 6AAA
Sentence: Total effective sentence of 65 days’ imprisonment and a Community
Correction Order for a period of 2 years
Section 6AAA declaration: 2 years’ imprisonment with a non-parole
period of 15 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Maguire | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms H Bate (Plea) Mr J Portelli (Sentence Deferral and Sentence) | James Dowsley & Associates |
HIS HONOUR:
1Daryl Strickland, you have pleaded guilty to one charge of burglary (Charge 1), for which the maximum penalty is a term of imprisonment of 10 year, one charge of theft (Charge 2), for which the maximum penalty is a term of imprisonment of 10 years, one charge of obtaining property by deception (Charge 3), for which the maximum penalty is a term of imprisonment of 10 years, and one charge of armed robbery (Charge 4), for which the maximum penalty is a term of imprisonment of 25 years.
2Tendered on the Plea as Exhibit 1 was a Summary of Prosecution Opening, dated 5 July 2019. I incorporate that document into these sentencing reasons. In brief, the circumstances of your offending were as follows.
3On 8 October 2018, a fellow resident of your Frankston boarding house, David Paterson, loaned you $90.00. You were to pay Mr Paterson back on 12 October, when you received your next Centrelink payment, and you gave Mr Paterson your National Australia Bank debit card as a security for the debt that you now owed him.
4At around 11:00am on 11 October 2018, you climbed through an unlocked window of Mr Paterson's room, which was captured on CCTV footage (Charge 1). You took a Samsung tablet valued at $400, concealed it beneath your clothing and exited through the door of Mr Paterson's room (Charge 2).
5You then walked to Cashmart in Frankston, where you entered into a loan agreement with the store for $50. You assumed ownership of Mr Paterson's Samsung tablet as a form of security for the loan (Charge 3).
6Later that afternoon, you went to Mr Paterson's room and told him that you had received your Centrelink payment and asked him to drive you to the bank. He agreed and drove you to a 7-Eleven store in Frankston.
7While you were seated in the car, Mr Paterson returned your debit card to you. You then said “I need $300, I need your card. Some bikie is going to break my leg if I don't pay him $300”. Mr Paterson told you that he did not have $300 and you replied “yes, you do”. Mr Paterson again said he did not have that money. You then produced an uncapped syringe filled with red colour liquid that Mr Patterson believed to be blood.
8You held the syringe about 30 centimetres from Mr Paterson's torso and said “I don't want to stab you, I've got AIDs”. You kept the syringe in the pocket of your jumper whilst you and Mr Paterson exited the vehicle. Mr Patterson immediately re-entered the vehicle and attempted to lock you out. You ran around to the driver's side of the vehicle and opened the door, which had not locked properly. You removed the keys from the ignition and Mr Paterson again got out of his vehicle. You followed him into the 7-Eleven store and watched Mr Paterson obtain an account balance from the ATM. Mr Patterson showed you that he only had $180.00 in his account. You then told him to withdraw $150.00 and took the money off him once it had been dispensed (Charge 4).
9You returned Mr Paterson's car keys to him and then paid the 7-Eleven store attendant for a doughnut and drink using some of Mr Paterson's money.
Mr Paterson kept his ATM receipt and left the store. He drove immediately to Frankston Police Station to report the incident. The incident was captured on the 7-Eleven store's CCTV.10You were arrested at your residence at 7:10pm on 11 October 2018. In your room, police located a number of items of clothing that you had worn during the armed robbery. Police also located a capped syringe in a pair of trackpants you were wearing and which you had worn at the time of the armed robbery. During police attendance at the boarding house, Mr Paterson also notified police that his Samsung tablet was missing. Mr Paterson later advised police he had made enquiries with Cashmart in Frankston and that his Samsung tablet had been used by you to obtain a loan of $50. You were taken to Frankston Police Station that night and provided a no comment record of interview, as you were entitled to do.
11I now turn to your personal circumstances.
12You were born in November 1971 and you are now 48 years of age. You were aged 46 at the time of this offending. You described a happy childhood. You left home when you were aged 17.
13You completed Year 10 and then completed an apprenticeship in roof tiling, working as a roof tiler for the next 15 years. You then worked as a forklift driver for Toll Company until 2016, when you lost your job due to being drug affected. You were unemployed for three years until August 2019, when you began working as a casual handyman for your then landlord.
14You have had one significant long-term relationship with Ms Bonnie Cronin, whom you met in 2003. Bonnie was a heroin addict. In 2006, she gave birth to your daughter Mystique. She introduced you to heroin and you quickly became addicted. Since then, you have struggled to remain drug-free. In 2014, your relationship with Ms Cronin ended. Your drug addiction has driven your criminal offending and, in addition to parenthood, it has been the defining event of your life. You are currently on a methadone program for your history of opiate dependence (see Exhibit 5DS).
15You have prior criminal matters, including two minor matters without conviction recorded in 1991 and 1994. Your first drug-related offending occurred in 2005, when you were aged 34 and since then you have offended intermittently between the ages of 34 and 41. The majority of those matters were acquisitive offences of dishonesty to support your drug habit. You have two recorded prior matters of interpersonal violence: recklessly cause injury in 2008, of which you have no re-collection and for which the police summary has been deleted, and recklessly cause injury in 2012. This was a family violence matter for which you were placed on a Community Correction Order (CCO). I note here that you have completed three CCOs successfully and, relevantly, you never breached those Orders by non-compliance or re-offending during their currency. You were last before the Court in 2012.
16When this matter came before me on 1 August 2019, your then Counsel,
Ms Bate, urged that I should defer your sentence. In support of that submission, she urged the following matters upon the Court. Firstly, this offending represented an escalation in your offending, but it did appear to be isolated. Secondly, it was committed in the context of your major relapse into drug use, following a succession of personal challenges that you were attempting to address, including a fresh relationship breakup, isolation, loneliness and a resort to the use of methamphetamine.17The psychological report of Carla Ferrari, consultant psychologist, dated 21 July 2019 (Exhibit 3DS) noted your shame and your expressed remorse for your offending, your developing insight into the impact of your offending upon your vulnerable victim, and your compliance with the conditions of bail upon which you have been placed. You further noted that you had lost contact with your sisters and parents as a result of this offending, and that friends of yours had distanced themselves from you.
18You intended to secure a place in residential rehabilitation and were part of an intake assessment at one such facility. I deferred sentence to enable you to attend either residential rehabilitation, if a place could be secured, or another intensive drug rehabilitation program.
19Over the period of deferment, you have applied yourself to the process of your rehabilitation and to remaining drug-free. You did not in fact obtain a place on a residential rehabilitation program, but you nonetheless persisted in seeking treatment. You completed the Building Bridges Program and an intensive 8-week Therapeutic Day Recovery Program run by the Salvation Army. Exhibit 8DS was a letter from the manager of that program, Mr John Farquharson, who noted that at the start, your attendance was inconsistent, but that as the program progressed, your whole approach improved considerably. He wrote that, in group sessions:
“He became quite a positive force in the group and spoke enthusiastically about how he was dealing with issues. He provided us with good feedback and his changed attitude was most evident”.
20At the completion of that program, you indicated a willingness to repeat the program and commenced on 30 March 2020. However, due to workplace restrictions following on from the start of the COVID-19 pandemic, therapy moved to telephone contact rather than in person. You have responded less well to that model, although Mr Farquharson accepts that the remote process does not suit everyone. He concludes: “We would prefer to be able to work with him face to face in a group setting”.
21I turn now to the submissions of Counsel.
22Ms Maguire, the learned Counsel on behalf of the Prosecution, submitted that general deterrence, just punishment and denunciation were all relevant sentencing considerations. Armed robbery is an offence all too prevalent within our community. She submitted that your offending was within the mid-range of seriousness for offending of this kind.
23There was an element of planning involved. Your offending was not spontaneous. The use of a blood-filled syringe was itself an aggravating feature. The armed robbery initially took place in a small space (being the victim's vehicle). Your victim, Mr Paterson, was known to you and he was, due to his age, in a vulnerable cohort. Your motive was to obtain funds to buy drugs.
24You have relevant prior criminal matters, though Ms Maguire fairly accepted these reflected a history of substance abuse and homelessness. This offence represented an escalation in your criminal history. Ms Maguire accepted that the significant efforts you had made towards rehabilitation moderated, although did not eliminate, the need for specific deterrence and for protection of the community. Ms Maguire conceded that yours was an early plea, which had significant utilitarian benefit. Her ultimate submission was that a sentence combining a term of imprisonment with a CCO, was within range.
25Counsel on your behalf, Ms Bate, recognised that general and specific deterrence, just punishment and denunciation were all relevant sentencing purposes in your case. In mitigation of any sentence, she urged upon the Court:
· Firstly, the importance of your rehabilitation;
· Secondly, your minimal prior history of interpersonal violence;
· Thirdly, this offending represented an escalation;
· Fourthly, your early plea of guilty and the benefits that plea brought with it, particularly of saving the community the time and the cost of a trial;
· Fifthly, your genuine remorse, both as expressed to Ms Ferrari and in your letters that you had written to the Court (Exhibit 4DS); and
· Lastly, she noted that you had never in fact served a term of imprisonment, but the time that you had spent on remand in relation to this matter had had a most sobering impact upon you, evidenced by your letter to the Court (Exhibit 4DS) and your lack of subsequent offending.
26Mr Portelli succeeded Ms Bate on your behalf and he filed supplementary plea submissions (Exhibit 10DS). He adopted the submissions of Ms Bate and referred me to your completion of the Building Bridges Program and to the absence of any further offending. His ultimate submission was that all relevant sentencing purposes could be sufficiently addressed by a term of imprisonment which represented the time that you had already served, together with a lengthy CCO that included further therapeutic conditions. Such an Order, he submitted, will best serve the interests of the public at large by promoting your rehabilitation and building upon the work that you had already done.
27Mr Strickland, armed robbery is a most serious offence, as is clear from the maximum penalty of 25 years that Parliament has seen fit to impose. Such offences are all too prevalent and they generate a sense of fear and insecurity in the community at large.
28At the time of the offending, you were living in a rooming house in Frankston and you were down on your luck. Your victim, Mr Paterson, was another resident. He was aged 68, vulnerable and, one assumes, of reduced circumstances, and a person probably to whom life had not been kind. But he had helped you out. He had lent you money, $90, which I am sure must have put his personal budget under some considerable stress.
29You repaid that trust and kindness that he had shown you by going into his room and stealing his Samsung tablet, and then pawning it at the local Cashmart. You then used pretence and threats of violence to make him withdraw $150 from his account, leaving him with only $30 until his next payment.
30Your weapon was what he believed to be a blood-filled syringe. You claimed to have AIDs, an insult to those who do suffer from that immunodeficiency disease. Although you stated that you did not want to stab him, you placed Mr Patterson in such fear that he did that which you asked of him.
31Your motive was to get money for drugs. You did not think for one moment of the impact of your offending upon your victim, Mr Paterson. Your offending was not a betrayal of his trust, but it was pre-meditated to a certain degree and was utterly callous.
32Mr Strickland, in sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is I must deter others from behaving as you did, and I must consider specific deterrence, that is the need to deter you from any repeat of such offending. I must consider the need to protect the community from you. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.
33I must take into account the effects of your crime upon your victim. I must have regard to the statutory maximum penalties for offences of the kind to which you have pleaded guilty and I must have regard to current sentencing practices. In short, I must try to balance your personal circumstances with the circumstances of your offending. I am also required by law to pass no greater sentence than is necessary.
34In my view, general deterrence, just punishment and denunciation are all relevant sentencing purposes in your case. However, these must, if possible, be balanced with the question of your rehabilitation. I accept that you are remorseful and I accept the significant efforts that you have made towards your rehabilitation. I find that the need for specific deterrence and the need for protection of the community from you is, in your case, considerably reduced, although not eliminated.
35I accept that it was your craving for drugs that led you to behave in this callous way. Both Counsel for the Prosecution and the Defence acknowledge that the armed robbery you committed represented an escalation by you in your offending.
36Over the nine months of deferment, you have continuously applied yourself to the goal of remaining drug-free. It seems to me that those endeavours should be encouraged by the Court and, to this end, I had you assessed for a CCO. You have been assessed as being of a low-risk of re-offending and as having responded well to court-ordered supervision in the past (see the Community Correction Order assessment report dated 21 April 2020).
37In sentencing you, I have particular regard to the following matters:
· your plea of guilty, entered at an early opportunity;
· your remorse, which I find to be genuine;
· to the fact that you have struggled with addiction since you were tragically introduced to heroin in your early thirties;
· that your criminal history substantially reflects your drug addiction;
· to the fact that you have not committed an offence of this nature before; and
· that you have successfully completed prior CCOs.
38The combination of all relevant factors enables me, after some consideration, to pass a sentence which does not require that you lose your liberty today. If you would be so good as to stand, Mr Strickland.
39On Charge 1, Charge 2, and Charge 3 you are sentenced to an aggregate sentence of 60 days’ imprisonment. On Charge 4, you are sentenced to a term of imprisonment of 65 days and to a Community Correction Order of two years.
40I make no order for cumulation.
41That makes a Total Effective Sentence of 65 days’ imprisonment and I declare that you have served that sentence that I have passed upon you by way of Pre-Sentence Detention.
42The Community Correction Order will have the following conditions:
(a) you must perform 150 hours of unpaid community work over a two-year period, as directed by the regional manager;
(b) I also order that all hours of treatment and rehabilitation that are satisfactorily undertaken by you, are to be counted as unpaid community work.
(c) you must be under the supervision of a Community Correction Order for a period of two years;
(d) you must undergo assessment and treatment, including testing for drug abuse or dependency as directed;
(e) you must undergo any mental health assessment and treatment as directed;
(f) you must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager; you must reappear at Court for a review of your Order as directed.; and
(g) I am putting on a condition of judicial monitoring. You must attend for review on 26 June 2020 at 2:15pm at this Court.
43The core condition Mr Strickland is not to commit any offence punishable by prison during the term of the Order. Do you understand?
44OFFENDER: Yes.
45HIS HONOUR: Do you consent to being placed on the Community Correction Order?
46OFFENDER: Yes.
47HIS HONOUR: I am going to sign this document.
48Now Ms Maguire, I am making a Compensation Order for Mr Paterson in the sum of $110.00 and I have just signed it. I am also making the disposal order sought. That is just in relation to the syringe.49Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a total effective sentence of two years’ imprisonment, with a non-parole period of 15 months.
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