Director of Public Prosecutions v Such
[2018] VCC 200
•1 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-00725
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE SUCH |
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| JUDGE: | HER HONOUR JUDGE RIDDELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 1 March 2018 |
| CASE MAY BE CITED AS: | DPP v Such |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 200 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. T. Crvenkovic | Office of Public Prosecutions |
| For the Accused | Mr. J. Lavery |
HER HONOUR:
1Leslie Terrence Such, you have pleaded guilty to one charge of attempted armed robbery, one charge of making threat to kill, two charges of causing injury intentionally and one charge of making a threat to inflict serious injury.
The circumstances of the offending
2These offences occurred during an incident on 16 November 2015. The facts are as follows:
3
At approximately 3 pm on that date, you attended the bus stop outside Frankston Railway Station. You were mumbling racist comments directed towards an unknown male queuing for the bus. You pushed in line and stood behind the unknown male in the queue. You continued to make comments directed towards him. The bus arrived and a number of passengers boarded the bus, including you and your victim, Ms Alannah Grey-McCormack.
Ms Grey-McCormack was 17 years old.
4Once on the bus, you proceeded to direct more racist comments towards the unknown male. You had a multi-tool knife in your hands. Ms Grey-McCormack sat two seats away from you. You then turned your attention to her, calling her a slut and a whore. She responded, "How do you know I'm a whore? You don't know me." You responded, "What did you say?" before then grabbing her hair and punching her to the right cheek.
5She was aware that you had a knife so she did not respond. You then leaned towards her and said, "Give me everything you've got you fucking little whore." This is the charge of attempted armed robbery. She replied, "I've got nothing, I'm broke."
6You then proceeded to stand up and walk towards her, holding the knife. You held the knife at her right cheek and said, "You think I'm fucking around? I'll stab you in the eye and slit your throat, you little slut." This constitutes the charge of making threat to kill.
7The knife blade was pressed against Ms Grey-McCormack's cheek. She then felt the knife being dragged across her cheek, constituting the charge of intentionally causing injury. Ms Grey-McCormack then stood up and yelled at you, "Try to fucking start on me and I'll fucking end you."
8The unknown male then stood up and said to you, "You are scum, how can you do that to a girl?" You replied, "I'll stab you in the eye, you fucking immigrants in my country."
9The bus driver then approached you and told you to get off the bus. You were still holding the knife. You continued to yell abuse at the unknown male.
10Your second victim, 19 year old William Pownall recorded some of the incident on his mobile phone before dialling 000. He told you, "I've just called Emergency Services" to which you responded, "You think I give a fuck?" You then attempted to knock Mr Pownall's mobile phone from his hand, before then punching him twice to the face with a closed fist. This constitutes the second charge of intentionally causing injury.
11You then exited the bus after being told to get off by the bus driver. Your third victim, 17 year old Jacinta Harding and a friend exited the bus at the same stop and started walking away. You walked behind them, waving the knife around. Ms Harding called the police. You noticed she was on the phone and you said to her, "You calling the police on me, how dare you? I'll stab you." This constitutes the charge of making a threat to inflict serious injury.
12You then pointed at a red back spider tattoo on your hand, and said to Ms Harding, "It's a red back spider, you know what that means; it means I'll kill you."
13You were arrested the same day. During your record of interview you made no comment or denied your involvement. You did admit to owning a multi-tool knife containing a blade, scissors and pliers.
14You were remanded in custody on the date of your arrest, being 16 November 2015. You were granted bail on 16 December 2015.
15A committal hearing was listed on 29 August 2016, however you did not attend the court and a warrant was issued. This constitutes a related summary offence of failing to answer bail.
16You were later arrested on 1 March 2017 and you have been in custody on these matters since that date.
Maximum penalties
17The applicable maximum penalties are as follows; for attempted armed robbery, a maximum of 20 years' imprisonment; for intentionally causing injury, maximum of ten years' imprisonment; making a threat to kill, a maximum of ten years' imprisonment; making a threat to inflict really serious injury, maximum penalty five years imprisonment. In relation to the uplifted summary offence of failing to appear on bail, being a summary matter, attracts a two year maximum penalty.
Victim impact
18I have received photographs of both victims who received injuries. Ms McCormack, a cut to her cheek and Mr Pownall, a cut to his bottom lip.
19Ms Alannah Grey-McCormack provided a victim impact statement dated 17 January 2016.
20She describes being on her way to work, minding her own business, before she was confronted by your aggressive and violent behaviour. She says her response to you was made out of fear and anger at your behaviour and a survival mode.
21She describes being scared and physically hurt by your grabbing her hair and punching her. She remembers the prominent red back spider tattoo and says she experienced horrible dreams involving that image. She says she can still feel the steel of the knife against her cheek. She says your behaviour put others on the bus in fear. Your behaviour has increased her own panic attacks and anxiety.
22She is an articulate young woman who described the chain reaction which your offending created in her life. She became extremely fearful of travelling in public, stating “public transport is a nightmare”. She was working in hospitality, and therefore became unable to travel to and from work. She lost her job, as a result she lost her ability to pay for rented accommodation.
23Her mother, too, writes a compelling victim impact statement. She describes her daughter as a domestic violence survivor and having spent years of hard work and counselling on rebuilding her life, your actions put her ‘back to square one’ according to her mother. She described watching her daughter and her own feelings of helplessness in her ability to help her recover from these events. This is the risk when you offend in this way, singling out a complete stranger; the impact is unpredictable and may be long-lasting.
Your personal background
24An outline of your personal history is as follows. You are now a 34 year old man, born in Box Hill and raised in the Eastern suburbs of Melbourne until you were 15. Your parents moved the family to Yarrawonga at that time. You were then given the option to leave school and pursue employment. Your mother was a stay-at-home mother, your father was a professional snooker player when he was younger, and ran a marketing company for 30 years prior to his retirement. You have two older sisters and two half-brothers from your father's previous relationship.
25You describe your childhood as good, indicating you were spoilt rotten by your father. You clearly had a strong relationship with him. For most of your life you were effectively an only child in the home after your older siblings had moved out. You did a great deal with your father, including attending sporting activities and your family holiday house in Dromana. You were connected with relatives. You played cricket for ten years and football for 12 years.
26You became involved in lawn bowls from the age of 16, and were a professional player for the next 12 years. You were often paid significant amounts of money with your expenses being met in that pursuit. At one stage, you apparently won a State Bowls title.
27Having decided to pursue employment in Yarrawonga, you worked at a supermarket for two or three years before moving to Melbourne. At this time you were playing Lawn Bowls professionally. When you moved to Melbourne, a Bowls Club obtained employment for you at Henselite Lawn Bowls manufacturer and you worked there for two or three years until around the time your father passed away. You were also involved in painting houses on a casual basis for three or four years with a fellow lawn-bowl player who had a business.
28You describe your parents' relationship in very positive terms, however it seems that your father became ill at around the age of 66 from renal failure, receiving dialysis. This caused financial and emotional strain on the marital relationship. This eventually broke down. When it did, your father in effect ceased dialysis as a way of ending his own life. Your father left you a letter detailing this.
29Effectively, therefore your relationship with your mother also broke down, and you did not have any contact with her for about ten years following the death of your father in 2005. You have only recently re-commenced that contact.
30You have had one significant, though intermittent, relationship and now have an eight year old son. You and your then partner, your son's mother, moved to Corowa at one stage for a new start. You were offered a position at the local Corowa Lawn Bowls Club. You had employment at a piggery. However, your partner was not happy in Corowa and you eventually moved back to Melbourne. Your relationship thereafter became intermittent and eventually broke down.
31It is in the context of your father's death that you commenced drug abuse. You were living at a boarding house around that time and a friend suggested you try heroin to help you deal with it. That friend would inject you.
32I have received a letter dated 18 August 2017 from Dr James Churchman, General Practitioner, and qualified Counsellor. He confirms that you have been a patient of his clinic since July 2006 and have been on a drug replacement program since that date. You have a long history of opiate dependence, initially prescribed Buprenorphine. Since 2012, you were prescribed methadone and was still receiving methadone at a rate of 110 milligrams daily until your incarceration.
33Alcohol also became a problem in approximately 2015, and at the time of your last review with Dr. Churchman in February 2017, you reported drinking two bottles of wine per day. On the day of these offences, you report that you had consumed a cask of wine, Valium and methadone.
Plea of guilty and remorse
34I have taken into account your plea of guilty. I note that the offence is now two years ago, however part of that is a result of your failure to appear at the committal hearing. It is your last offending and you have nothing outstanding.
35True it is that your plea came sometime after the offending, however no witness was cross-examined at any committal and nor was there the need for trial.
36Clearly, during the period when you were on bail for these offences, your life was still out of control, as evidenced by your failure to appear at the committal hearing, and by your reported alcohol and drug consumption as late as February 2017, as reported by Dr Churchman. I do accept however, that the opportunity to become sober in custody caused you to reflect on your offending behaviour. Your plea of guilty is a demonstration of that reflection, wherein you have accepted your responsibility for the offending and expressed remorse for it.
37I have received a letter written by you to that effect, and I have also noted the comments you made to Mr Simmons, Psychologist, namely that you are ashamed and remorseful for your behaviour during this offending. There is, of course, the utilitarian benefit in any plea.
General deterrence, just punishment and denunciation
38General deterrence, just punishment and denunciation are at the forefront of the principles for consideration in a matter such as this. Attempted armed robbery is an offence of violence. This type of offending is prevalent. It often involves a person who is substance-affected making an unprovoked attack on vulnerable victims. All of those hallmarks existed here. These were three young people going about their business.
39
In your case, your demand was enforced by the use of the knife. That violent behaviour then continued when you used that knife on the face of
Ms Grey-McCormack, dragging it across her cheek.
40I do accept that the attempted armed robbery was a spontaneous event, however it is, of itself, reflective of your erratic, aggressive and violent behaviour on this day.
41That behaviour and the overall offending was of some duration and committed in the close confines of a moving bus. Ms Grey-McCormack describes her terror and particularly a fear that if the bus lurched, the knife may cause serious injury to her face. The threat then made to kill her was an extremely nasty example of such a threat and made at a time when she had a knife to her face.
42Once she managed to disentangle herself from you, you then turned your attention to a Good Samaritan who attempted to intervene and call police for help. He too, suffered injury as I have described. Not to be deterred, you then pursued your third victim off the bus and made what is a very disturbing threat to her. Those matters all point to the need for general deterrence and just punishment.
Rehabilitation:
43This matter was adjourned to enable a psychological assessment to be made of you. I received that helpful report, dated 13 February 2018, from Mr Matthew Simmons, Psychologist. He confirms the personal history I have outlined. He states, "There was little in Mr Such's childhood that would have left him vulnerable to substance use, however following the death of his father in somewhat tragic circumstances, he struggled with grief. This was aggravated by the fact that he perceived his mother as having a significant part to play in his father's death, and therefore was unable to obtain support from her. No doubt he was angry with his mother, but also grieving for his father." It was in this context, you turned to heroin.
44"Subsequently, he has had ongoing issues with heroin dependence and then, more recently, alcohol abuse." Mr Simmons opines that the level of your abuse would meet the criteria for Substance-Use Disorder involving alcohol, heroin and benzodiazepines. Of course, substance abuse does not excuse your offending, but against what was an otherwise positive background, it gives some explanation.
45I accept that your descent into drug abuse began as part of your grief response in relation to your father's death, as detailed. Your use of heroin to dull that response, saw it quickly take hold of you and this in turn spiralled into years of drug use, of both illicit drugs and abuse of prescription drugs as well as significant abuse of alcohol. Perhaps unsurprisingly, that descent continued with the lack of employment, relationship breakdown and homelessness.
46The death of your father is now some 12 years ago, and while there is no time limit on grief, you must now determine to take some steps, first to deal with any resultant grief, and secondly, to deal with your ongoing risk of addiction. In short, your future is in your hands. Failure to take those active steps now will put you at a great risk of returning to a chaotic life and to imprisonment.
47Having said that, I do see there is some hope for rehabilitation with you. Mr Simmons states there is little to suggest you have any significant anti-social personality traits, and that must be consistent with your positive upbringing.
48Your path to rehabilitation starts with the fact that you have now spent a significant time in custody and are now alcohol and drug free. You have completed some courses during your time in custody, which I accept is often more difficult as a remand prisoner. You have also reflected on your behaviour, both generally and on the day of these offences. You say in your letter to me that you admit you have a drinking problem and you need to do something about it to make sure you stay on the right track. I agree.
49It is important and a significant matter that you have now reconnected with your older brother, Greg, and you have active support from him. I note he is in court again today. He is a 56 year old man, and offers you practical support by way of accommodation. This is a potential game-changer for you, because you had been living from hand-to-mouth at the time of this offence, often in boarding houses and largely in isolation.
50Another factor which bodes well for your rehabilitation is that you are a man with a specific niche talent, namely you are adept at lawn bowls and apparently played professionally as I have detailed. It is a positive that you want to return to that pursuit. It is a positive also that you want to obtain qualifications from TAFE in order to get back into the painting trade which you enjoyed. It is positive that you are looking to your relationship with your own son, and hoping to connect with him in a way which clearly your father was able to do with you. Perhaps these steps show that at age 34 you are ready to take stock and move your life forward in a positive way. Mr Simmons notes, in that regard, that you are insightful.
Specific Deterrence
51I cannot of course ignore the issue of specific deterrence. Your prior matters at first glance, appeared reasonably lengthy, however there are really only two tranches of offending.
52The first was in 2009 where you were dealt with at Dandenong Magistrates' Court for possession and use of cannabis and more importantly, for my purposes, possessing a prohibited weapon without approval and possessing a controlled weapon without excuse, of which there were three charges. You were fined and placed on an adjourned undertaking without conviction. You apparently completed that undertaking.
53The second batch of offences was dealt with again at Dandenong Magistrates' Court in February 2013. That consisted of a reasonably lengthy list of matters, again related to possession and use of cannabis, methyl-amphetamine, prescription drugs and again, carrying dangerous article in public, possess prohibited weapon without exemption, possess ammunition without a licence, shop theft and pertinently, assault with a weapon.
54On those charges by way of an aggregate, you were convicted and ordered to undertake a Community Corrections Order for 12 months with 50 hours unpaid community work and relevant treatment and rehabilitation conditions attached. You breached that Community Corrections Order within a period of six months by way of your failure to comply. In August 2013, you were dealt with for that breach and sentenced to three months' imprisonment wholly suspended for two years. That operational period expired in August 2015, some three months before committing these offences. Specific deterrence is therefore relevant in that you have prior matters for both using and possessing weapons, for offences of violence, and for breaching a Community Corrections Order. I was told that the assault with the weapon related to a fight at a boarding house where, on that occasion, you also used a knife.
55Those matters obviously reflect that period of chaos in your life. They do not detract entirely from what I have said in relation to your prospects of rehabilitation now that you have been in custody for a period of time and are now sober and drug-free.
Cumulation
56In considering the sequence of events, although these charges arise as part of a series of offending, in my view they do warrant some degree of cumulation, reflective of the three separate incidents pertaining to the three separate victims.
57In determining what degree of cumulation, I do note the offence of intentionally cause injury in relation to Ms Grey-McCormack occurred in short succession to the threat to kill. The offences against the other two victims were quite separate and occurred despite repeated attempts by others to intervene including the bus driver ejecting you from the bus.
58If you could please stand, Mr Such. I sentence you as follows;
59On the charge of attempted armed robbery, three years imprisonment and that is the base sentence.
60On the charge of threat to kill, 18 months' imprisonment with six months cumulative.
61On the charge of causing injury intentionally to Ms Grey-McCormack, 18 months' imprisonment.
62On the charge of causing injury intentionally to William Pownell, 18 months' imprisonment with three months' cumulative.
63On the threat to inflict serious injury in relation to Ms Harding, 12 months' imprisonment with three months' cumulative.
64In relation to the fail to appear, one month imprisonment.
65That is a total effective sentence of four years' imprisonment. I order you to serve 26 months' imprisonment before you are eligible for parole.
66Had you not pleaded guilty to these offences, the sentence I would have imposed would have been five and a half years' imprisonment with three and a half years non-parole. I declare that you have now served, and I will just confirm the pre-sentence detention time. I think it is 390 - - -
67MS CRVENKOVIC: 396 days.
68HER HONOUR: Ninety six, thank you, 396 days pre-sentence detention.
69I was asked to make a s.464ZF order. I do not believe there was any opposition to that. Even if there had been, the seriousness of the offending coupled with your prior matters, support the making of such an order and I do propose to make it. I see the prosecutor has a draft.
70Application was also made for disposal in relation to the Leatherman knife and also a flick knife used during the commission of these offences, and I propose to make those orders.
71You can take a seat, Mr Such, and I will just have those orders passed to me.
72Thank you. I will leave the Bench until 2.15.
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