Director of Public Prosecutions v Sutton
[2016] VCC 616
•16 May 2016
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00097
CR-16-00098
AP-16-0027
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY JOHN SUTTON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 1 April 2016 | |
DATE OF SENTENCE: | 16 May 2016 | |
CASE MAY BE CITED AS: | DPP v Sutton | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 616 | |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Armed Robbery.
Catchwords: Soft targets- recklessly causing serious injury.
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991;
Cases Cited: Boulton v R [2014] VSCA 342;
Sentence: 5 years and 7 months imprisonment with 3 year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Lewis | John Caine, Solicitor for Director of Public Prosecutions |
| For the Accused | Mr D McGlone | James Dowsley & Associates |
HER HONOUR:
1 Bradley Sutton, you have pleaded guilty before me with respect to two indictments.
2 The first one, No F12487552, relates to two charges of armed robbery that took place on 9 March 2015 and 29 March 2015 respectively.
3 With respect to Indictment No F12466970, you pleaded guilty to two charges relating to July 2015 being one charge of causing serious injury recklessly and one charge of possession of an unregistered general category handgun, namely a shortened .22 calibre bolt action rifle.
4 You also pleaded guilty to a summary charge that was transferred pursuant to s145 of the Criminal Procedure Act 2009, Charge 6, commit an indictable offence, namely recklessly cause serious injury whilst on bail and you have pleaded guilty to that charge.
5 There was also an appeal against sentence that was imposed at Geelong Magistrates’ Court on 8 January 2016. On that date you pleaded guilty to one attempted burglary; one charge of go equipped to steal and one charge of theft of a motor vehicle, for which you were convicted on all charges and sentenced to an aggregate sentence of 60 days’ imprisonment; Forfeiture Orders were made without consent and 60 days declared as pre-sentence detention. You formally abandoned the appeal before the court.
6 These offences are serious and that is reflected in the maximum penalties that can be imposed.
Maximum penalties:7
– armed robbery, 25 years' imprisonment;
– causing serious injury recklessly, 15 years' imprisonment;
– possessing an unregistered category handgun, First offence: 600 penalty units or 7 years' imprisonment
– commit indictable offence on bail, 3 months' imprisonment
8 You are aged twenty-three. Your date of birth is 6 March 1993. The context to the offending is that in early 2014 at age 20, you commenced a relationship with an older woman, Carriline Forfar. This was your first serious intimate relationship. During that relationship, which is described as being destructive, you developed an addiction to methylamphetamine. Your former girlfriend reinforced drug taking behaviour. The chronology to the offending is that the two armed robberies took place first in time, followed by the charges that are the subject of the summary matters, the subject of the appeal (that was formally abandoned before the Court) and then the charges relating to Jamie Hancock. At all relevant times you had no prior criminal record.
9 I shall deal with the offending in chronological order.
Indictment F12487552
10 Charge 1, armed robbery, concerns you attending the 7Eleven store, North Geelong on Monday, 9 March 2015 at around 10.24pm. At that time, Simranjit Singh was working alone in the store, filling up the cigarette dispenser behind the counter. You entered the store wearing beige cargo pants, a black hooded jumper with a white motif and a black beanie. You approached the counter and said to Mr Singh, “Give me the money”. You repeated your demand and held a small knife out over the counter, pointing the blade in the direction of Mr Singh.
11 Mr Singh opened the cash register and took cash out and placed it on the counter. You reached over and removed further notes from the till drawer and, whilst doing this, demanded that Mr Singh give you smokes, to which he replied, “Which smokes?” You said, “sorry”, and ran from the store. Mr Singh activated the emergency button and police arrived shortly thereafter. It is estimated that you stole between $300 to $400. You then used that money to purchase ice. The victim, Mr Singh, described feeling extremely shaken and physically sick after the incident.
12 Charge 2 concerns an armed robbery that you committed on the Nevada Milk Bar, Corio. On 29 March 2015 around 3.20pm, you entered that store wearing a hooded jacket, a white V-neck t-shirt, and metal rimmed aviator-style sunglasses. You asked the lone store attendant, Catherine Field, for a carton of Winfield Blue cigarettes. She went out the back to check for stock. A customer entered the store. Ms Field told you that she only had a carton of Winfield Original Blue. You left the store telling her you had to go and find out.
13 A short time later, you re-entered the mild bar when there were no customers present. You told Ms Field you would have the carton. She said it would be $187. You then said to her, “Give me the money” but she misheard or misunderstood and replied “Yeah, it’s 187”. You said, “No, out of the till”. You then produced a black handled hunting knife and held it on the counter pointing it at Ms Field. You slammed the knife on the knife on the counter and yelled, “The money out of the till, hurry up.” You demanded that she place the cigarette carton on the counter. She opened the till, took out the money and threw it at you.
14 You picked up some of the money and fled the store with the carton of cigarettes. It is estimated you stole between $100 to $200. You ran to your car. Ms Field gave chase but you were able to get into the car and drive off.
15 You were arrested and interviewed by police on 6 July 2015. You initially denied any knowledge of the armed robbery at the Nevada Milk Bar but later made admissions to committing both armed robberies and stated that you did so to purchase drugs. You told police you had disposed of the knife used and clothing worn during the offending.
16 During the course of your interview, you explained to police you were desperate to get drugs and that was the motivation for your offending. You told police you were sorry that you did it and you were ashamed.
17 Victim Impact Statements were filed from both Simranjit Singh and Catherine Field.
18 Mr Singh describes in his statement that he was scared about going to work for a few days after the incident and felt insecure during night times and that he was ruminating about the incident and had nightmares. He had difficulties sleeping at night. He explained that this event has had a big impact on him.
19 Ms Field states that she is now very careful since the armed robbery and does not trust anyone with a hood or sunglasses in the shop. She considered that she was coping well but every now and then she has flashbacks.
Indictment F12466907
20
The victim is Jamie Hancock, a person who is known to you through your drug dealing connections. Throughout Wednesday, 1 July 2015, you and
Mr Hancock had been in each other's company in Norlane and the Corio areas of Geelong. On that day you were driving your mother's vehicle. In the early afternoon you dropped Mr Hancock off at a block of apartments in Norlane. He remained there with a friend and during the course of the afternoon you were in regular phone contact with him. Mr Hancock stated that you owed him money. At around 9.16 pm, Mr Hancock was leaving the apartment block to meet up with another friend and as he walked down the flight of stairs to reach ground level you were present holding a sawn-off rifle. You approached him and he ran towards the side gate near the car park.
21 A scuffle broke out between you both, during which you fired the .22 calibre shortened rifle. The bullet struck him in the front of his left thigh and passed through his leg (Charge 1, causing serious injury recklessly and Charge 2, possession of an unregistered general category handgun). Mr Hancock said, “You shot me, you dog.”
22 Ms Cindy Benson, who is Mr Hancock’s mother, had arrived at the flats a short time before the shooting. She was collecting her son and witnessed both the scuffle and the flash from the firearm when it was discharged.
23 Shortly after the shot was fired, you fled the scene. Mr Hancock attempted to give chase but was stopped when his mother called him back. You were observed driving away from the apartment complex.
24 Mr Hancock was conveyed to the Geelong Hospital where the wound was examined. The wounds included the following:
·on the left anterior proximal thigh, a well circumscribed circular wound, 5 millimetres in diameter;
·on the posterior medial thigh, distal to the anterior wound, a well circumscribed circular wound 10 millimetres in diameter. This wound was bleeding a small amount of old blood more than one hour after a compression bandage had been applied.
·There was no damage to the arterial blood supply of the left lower limb and the wound required an exploratory surgical operation four days later.
25 There is no police statement from Mr Hancock, nor is there a victim impact statement, so I am not aware of his situation thereafter.
26 After the shooting, you and your girlfriend, Ms Forfar, went to another friend's home in Dereel, about 80 kilometres from Geelong. You changed into some fresh clothing and put the clothing that you were wearing at the time of the shooting into the washing machine. You told your friend Mr Riley that you had a new telephone number and that you had smashed your old phone. The following day you drove back to Geelong with your girlfriend. The vehicle that you had driven to the incident involving Mr Hancock remained at your friend's home in Dereel.
27 At the time of this offending, you had been bailed to appear at Geelong Magistrates’ Court on 26 August 2015, in relation to an attempted burglary, go equipped to steal and theft of motor vehicle charges that related to the events that occurred on 11 June 2015, that were the subject of the appeal that has been abandoned before the court. It is important at this stage that I just relate the circumstances of those matters.
Appeal – summary of facts
28 On that occasion you were with another male, Tyson Blacksell. You made arrangements to commit a commercial burglary at the Bean Squeeze drive-through coffee shop in Geelong West. At about 3.10am, you travelled to Bean Squeeze with Mr Blacksell and parked in the drive-through area. You were wearing a balaclava and gloves and equipped with a hammer, axe and screwdriver. Both you and Mr Blacksell went to the rear of the Bean Squeeze and attempted to force entry to the door by smashing the lock with a hammer, damaging the door.
29 Police were notified that the burglary was in progress and on attending they observed the car in which you travelled in the drive-through. They then saw you and the co-accused return to the vehicle and drive off at a fast speed. They pursued your vehicle. Eventually you drove to an area where you were able to pull over and decamp. In the meantime, you had managed to call your girlfriend, Ms Forfar, who had arranged to collect you. She did so, however police observed that vehicle and intercepted it, locating both you and the co-accused. On that occasion you were arrested and charged with those offences and subsequently dealt with in the Magistrates' Court and given a 60 day aggregate sentence.
30 In respect to the shooting, you were arrested by police on 2 July 2015. You informed police you had broken the firearm into pieces and scattered it over several locations. You took police to Myers Reserve in Bell Post Hill. There they recovered the barrel and trigger component and the bolt and firing pin. You showed police a section of the Princes Highway where you disposed of pieces of the butt of the firearm by throwing them from your car, but those pieces were never located. When interviewed in respect to this offending, you made a “no comment” answer in respect to the shooting.
31 Police conducted a search of your residence that day and there they located the forearm section of a long arm firearm, with evidence of damage, under your bed. Photographs found on your mobile phone showed an assembled bolt action .22 calibre firearm with identical bolt and firing components to those located by police at Myers Reserve.
32 Forensic examination was undertaken of the pieces of the gun that were recovered and the barrel and trigger and bolt firing pin was repaired, reassembled and test-fired. A comparison of the test cartridges and the shell casing that police located at the scene of the offending showed the shell casing came from that same firearm.
33 The firearm had been shortened to a length that made it fall within the definition of a handgun.
34 You were remanded in relation to this matter on 2 July 2015 and you have been held in custody since.
35 On 8 January 2016, you were sentenced in the Magistrates’ Court, Geelong, to 60 days’ imprisonment with respect to the matters that were the subject of the appeal that was formally abandoned before the court. Because you had been in custody leading up to that sentence, the full 60 days was reckoned as time already served. I have had regard to that time that you have already served in prison in a general sense when calculating the sentence for this matter that is currently before me.
36
You indicated your intention to plead guilty to the charges on Indictment F12487552 on 15 October 2015. However, the matter remained in the committal mention phase with the other indictable matter until 1 February 2016 when both matters then proceeded by way of straight hand-up brief following the entry of pleas of guilty. The Crown accepts your indication of intention to plead guilty came at the earliest opportunity with respect to each indictment.
I note that the matters proceeded by way of straight hand-up brief. No witnesses were called to give evidence at the committal.
37 The victim of the shooting, Mr Hancock, did not assist the police and, when asked, declined to make both a statement and a Victim Impact Statement. Nonetheless, I have had regard to the circumstances of the offending and consider that because he was shot he would have suffered physically as a consequence of your actions.
38 Mr Sutton, this offending is very serious representing a series of very serious offending over the period from 9 March 2015 to 1 July 2015, that escalated over the course of time and was very alarming. It sits at odds with the fact that you are a person who did not have a prior criminal history.
39 In sentencing you there is a real need to emphasise general deterrence, specific deterrence and punishment.
40 I consider that both the armed robberies and also the instance of recklessly causing serious injury are both serious examples of these offences. The armed robberies occurred on "soft targets". You made sure that the attendants would be alone. As a consequence of your actions they have both suffered, as I have already indicated by reference to the victim impact statements that I have referred to.
41 In terms of the recklessly cause serious injury charge relating to the shooting, this is a very serious example of this sort of offence. Fortunately for you the injury that was suffered was at a lower level. You are very fortunate that it did not result in more serious injury. I do not accept your explanation that you had no intention to discharge the firearm. You went to the apartment block to confront the victim, knowing that you had in your possession a loaded weapon, and at all times there was always a material risk that the firearm would be discharged and, indeed, this is what transpired during the course of your struggle with the victim.
42 There is a very strong need for this court to formally denounce your behaviour.
43 I do accept there is a link between your descent into serious criminal offending and your involvement with drugs. Whilst providing an explanation for your offending it in no way excuses your offending.
44 I have had regard to the contents of the report prepared by Ms Carla Lechner, consultant psychologist, who assessed you on 15 March 2016 and her report of 24 March 2016 was tendered at the plea hearing. She confirmed that you present with symptoms of a stimulant use disorder (DSM-5) in early remission in a controlled environment. She states that you reported to her that since being in prison you have been abstinent from drugs and that your level of depression and anxiety has improved and you expressed regret and shame for your offending.
45 She recommended that you would benefit from supports within the community upon your release and that your prospects for rehabilitation are likely to be positive in light of the short-lived nature of your offending, your insight regarding the link between your drug use and the offending and the need to cease the destructive relationship that you had with your former girlfriend that reinforced drug-taking behaviour.
46 By way of personal history and background, I note that you are an only child. Your mother, Gail, raised you as a single parent. Your father is a person whose age and whereabouts is unknown. Your parents separated before your birth and you have only seen your biological father a couple of times many years ago. You believe you have three half siblings on your father’s side but do not know anything further about them. You have four older step siblings on your mother’s side, all older, aged in their thirties. You are close to your mother, stepbrother Chris, and stepsister, Rebecca. They continue to support you and visit you regularly whilst you are in custody and have been supportive of you throughout the hearing of the plea. You are single with no dependents. You were engaged to Ms Forfar, but have now stopped that relationship following your remand.
47
You grew up in the Geelong region where you attended various schools. You completed Year 10 but did not pass. Academically, you did not fare well and had problems with learning difficulties at school. Ms Lechner tested you and found you to be in the low-average range of intelligence with approximately
82 per cent of the adult population performing better. She assessed your IQ at 86.
48 On leaving school, you had work with a chicken farm washing sheds and you held that job for some three years. Thereafter you did some landscaping work. You also worked in a mower shop until the company went bankrupt and then you drove a milk truck for about 18 months during which time you met your former girlfriend. Her mother owned a café and you developed your relationship through that association.
49 Ms Forfar had an addiction to drugs and your history of drug use is inextricably bound up with your relationship with her. You had not used any drugs at all until you two met. At about two months into that relationship you began using. Your use escalated up to daily use and was up to a couple of grams of ice a week. As a consequence there was pressure on you to find money to finance your illicit drug use and things quickly spiralled out of hand. Due to your drug addiction you lost your job and became unemployed. You exhausted all your own financial means and then you started offending to finance your drugs.
50 Through your pleas of guilty you now have accepted responsibility for this offending and acknowledge the seriousness of your actions. You acknowledge that the victims of the armed robberies would have been horrified. In respect to the shooting, you say that you had not slept for a couple of weeks and things simply just got out of hand. You were paranoid and now you are immensely sorry for the distress that you would have caused the victim. Your expressed intention is that on your release from prison, That you wish to move out of the Geelong region and find employment and you want no contact with your former girlfriend.
51 In her report, Ms Lechner highlights the fact that during your childhood you only had only the benefit of a positive role model for only a relatively brief period and, in the absence of a mentor, you struggled to establish a strong sense of identity. In this setting you were thereby easily influenced by a much older girlfriend. She opines that your offending occurred in the context of a significant ice addiction and your strong desire to meet the expectations of your then partner.
52 She considered that you impressed as being cognitively, socially and emotionally immature, however you did have the capacity to reflect on the impact of your behaviour on yourself and others and you could identify the link between your drug addiction and your offending. She said you now express regret and dismay about the offending.
53 Mr McGlone, on your behalf, highlighted a number of mitigating factors. You entered early pleas of guilty with respect to all charges, the subject of the two indictments and that is accepted by the prosecution.
54
I accept that your pleas were entered at the earliest stage and that they have real utility. By reason of your pleas no witnesses have been subjected to the further trauma of having to come to court to give evidence at the trials and there you have facilitated justice and your sentence will be discounted accordingly.
I accept the pleas of guilty are evidence of remorse on your behalf.
55 I also accept that you were co-operative to an extent with the police relating to the identification and recovery of the firearm components that were used in the Hancock matter.
56 Mr McGlone highlighted the fact that you are still relatively youthful and that rehabilitation still has an important role to play in your sentencing disposition. You have indicated your willingness to undertake rehabilitation to deal with your drug addiction and I have taken that into account. I consider that there is some cause for optimism about your prospects for rehabilitation, but that is linked to you ceasing drugs altogether.
57 I have had regard to the fact that you have used your time productively whilst you have been in custody. You have completed the substance use program and the relapse prevention program. Both of those programs highlight issues associated with substance misuse and have provided you with some awareness about how to deal with relapse prevention and have given you some strategies for the future.
58 Putting to one side this dramatic escalation in your offending behaviour, your past life was up until that point exemplary. You were crime-free and gainfully employed and the reference material shows that. Gareth Owen confirms that you worked at Fox Farm Services for three years and that you were considered to be a role model for other workers. He states that you were one of his most valued employees. He is a personal friend and he attests to your strong work ethic and good attitude. He considers that you are motivated and, if given the opportunity, you could change your life around and he is prepared to offer work for you and accommodation on the farm upon your eventual release.
59 Trevor Cambridge, who has known you for 14 years, says you are a friendly and respectful person who is responsible. He also attests to your work ethic.
60 Robert Andrewartha confirms he has known you 22 years. He has known you through your own mother. He says the offending is out of character and he knows that you are very remorseful. You worked with him at a time whilst you were still at school and he has watched you develop over many years. He says you have expressed your regret to him in respect to the offending.
61 I have also taken into account that you have made the most of very difficult conditions whilst you have been held in custody. Port Philip Prison has been the subject of lock-down following the July 2015 riots. The conditions have been much more onerous than otherwise and I have taken that into account.
62 You are currently in a position working within the prison and I have taken that into account.
63 I have also taken into account that prison has been difficult for you because you are a person who is relatively small in stature and there have been occasions where you have been subject to being stood over by other prisoners and that has caused you great anxiety.
64 Mr McGlone, submitted that whilst an immediate custodial disposition is conceded, that a term of imprisonment coupled with a Community Correction Order would be appropriate in the light of the principles enunciated in the guideline judgment of Boulton v R.[1]
[1][2014] VSCA 342
65 Mr Lewis, on behalf of the prosecution, emphasised the serious nature of the offending the subject of the separate indictable charges. Each represents an independent series of offending and therefore he submitted some cumulation is required. He noted you had no prior criminal history and there was some confidence in relation to your rehabilitation prospects for the future. He conceded the injury suffered by Mr Hancock was at the lower end of the range for serious injuries but highlighted potentially the injury could have been life-threatening. He also highlighted the need for court to emphasise general and specific deterrence in respect to the armed robberies and the fact that those armed robberies were committed on "soft targets" and that each of the victims were adversely affected. He submitted that a combined sentence to be followed by a Community Correction Order was not warranted. Implicitly, this means that the Crown do not accept that a Community Correction Order of two years followed by a gaol term is appropriate in all the circumstances.
66
I am conscious of the decision of Boulton & Orsv The Queen.[2] That has been the subject of further consideration in numerous cases since. The court in
[2][2014] VSCA 342
Alam v The Queen[3]stressed the need for courts to rethink the conventional wisdom about whether prison is really the only option. However, as Priest JA has observed in Hutchinson v the Queen,[4] Boulton does not offer a “get out of gaol free” card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which sentence may be imposed.
[4][2015] VSCA 115, [17] per Priest JA with whom Ashley JA agreed, cited with approval in Ellis v The Queen [2015] VSCA 320 [42]
[3][2015] VSCA 48
67 I have also had regard to two recent cases of the Director of Public Prosecutions v Dennis Basic[5] and Director of Public Prosecutions v Stephen Grech[6] and the indications given in those cases about combining a Community Correction Orders with gaol. I have taken those comments into account in a general sense.
[5][2016] VSCA 99
[6][2016] VSCA 98
68 As well as the matters personal to you, including your prospects of rehabilitation, which I consider to be relatively optimistic, I must also have regard to the gravity of your offending, the principles of general deterrence, just punishment, protection of the community, denunciation and specific deterrence.
69 In the circumstances the sentence to be imposed is one greater than a term of imprisonment longer than two years, hence longer than one which may be combined with a Community Correction Order.
70 I do not consider that a sentence other than a term of imprisonment to be immediately served is the most appropriate sentence in all the circumstances of this case.
71 Of course in fixing the sentence, I must have regard, in your favour, to the principles of proportionality and totality and the need to avoid the imposition of a crushing sentence upon you. I am conscious of your relative youth, your previous good character and the fact that this is the first time that you will be sentenced to a term of immediate imprisonment with a non-parole period attached.
72 The formal court orders are:
73 On each charge you will be convicted and sentenced as follows Indictment F12487552.
74 On Charge 1, you will be convicted to two years six months' imprisonment.
75 Charge 2, three years’ imprisonment.
76 Six months of the sentence imposed on Charge 1 is cumulative upon the sentence imposed on Charge 2 making a total effective sentence of three years six months' imprisonment.
77 Indictment F12466907 you are convicted and sentenced:
78 On Charge 1, to three years’ imprisonment.
79 On Charge 2, possessing an unregistered category handgun, 12 months’ imprisonment.
80 On Summary Charge 6, commit an indictable offence whilst on bail, you will be convicted and sentenced to three months’ imprisonment.
81 Six months of the sentence imposed on Charge 2 and one month of the sentence imposed with respect to the summary charge is cumulative upon the sentence imposed on Charge 1, making a total effective sentence of three years seven months' imprisonment.
82 The sentence on the second Indictment is the base sentence, that is three years seven months and I order that two years of the sentence imposed in respect to the first Indictment shall be cumulative on the sentence, making a total effective sentence of five years and seven months. I fix a period of three years before which you shall not be eligible for release on parole.
83 I declare 259 days pre-sentence detention and direct that is to be entered into the records of the court.
84 Finally, I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of six and a half years, to serve four years.
85 I make the disposal order sought with respect the firearms parts, your clothing and the mobile phones seized.
86 I believe that is all I need to do.
87 MR LEWIS: Yes, Your Honour.
88 HER HONOUR: That finishes the matter. All right. Thank you, you may take Mr Sutton downstairs.
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