Director of Public Prosecutions v Swansborough
[2021] VCC 1979
•6 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00429
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS SWANSBOROUGH |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2021 | |
DATE OF SENTENCE: | 6 December 2021 | |
CASE MAY BE CITED AS: | DPP v Swansborough | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1979 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – two charges of armed robbery – offender used knife to demand money from shops – soft targets – prior criminal history – early plea – COVID-19 considerations – Bugmy principles – disadvantaged upbringing – Verdins principles – ADHD – substance abuse disorder – borderline personality disorder – antisocial personality disorder – anxiety & depression.
Legislation Cited: Crimes Act 1958 (Vic) s 75A; Sentencing Act 1991 (Vic) ss 5, 18, 6AAA.
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence: 34 months imprisonment with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Cameron | Office of Public Prosecutions |
| For the Accused | Mr L. Dogger | Daniel Taylor Lawyers Pty Ltd |
HER HONOUR:
1Douglas Swansborough, you have pleaded guilty to two charges of armed robbery, contrary to s 75A of the Crimes Act 1958 (Vic).
2The offences to which you have pleaded guilty each carry a maximum penalty of 25 years’ imprisonment.
Circumstances of the Offending
Armed Robbery – Charge 1
3Through your counsel you have admitted the circumstances of your offending as set out in a detailed summary of prosecution opening.[1]
[1]Exhibit A.
4On 31 August 2020 at 5.44 pm, you attended a Dan Murphy’s Liquor store located at 60 Princes Highway, Traralgon wearing sunglasses and a light blue face mask.[2] The first victim, Mark Guerin, was working at the front registers when you arrived. There were also two more employees on shift who were working at the back of the store.[3]
[2]Ibid [3], [5], [6].
[3]Ibid [5].
5Once you arrived at the Liquor store, you walked directly to Mr Guerin's counter.[4] You reached into the rear of your pants and removed a black-handled knife with a serrated blade.[5] You then placed your hand holding the knife on the counter so that Mr Guerin could clearly see it, and said something about giving you the cash.[6]
[4]Ibid [6].
[5]Ibid.
[6]Ibid.
6You told Mr Guerin to “hurry up” and started counting upwards from one.[7] When you got to the count of seven, you told Mr Guerin to again, “hurry up” and that he was “running out of time”.[8]
[7]Ibid [7].
[8]Ibid.
7Feeling threatened and in fear of his safety, Mr Guerin took approximately $400 from the cash register and placed it on the counter.[9] You took this money and ran out from the store.[10]
[9]Ibid [8].
[10]Ibid.
8Mr Guerin called Triple 0 and police subsequently attended the store.[11]
[11]Ibid [9].
Armed Robbery – Charge 2
9
On 1 September 2020 at 11.48 pm, you attended Your Beauty Routine, located at 4/29 Princes Highway, Warragul, wearing sunglasses and a grey-coloured handkerchief as a face mask.[12] The second victim,
Joanne Cortaz, was working at the front of the store when you arrived, and another staff member, Andrew Fox, was working at the back of the store.[13]
[12]Ibid [4], [10], [11].
[13]Ibid [10].
10Ms Cortaz assisted you when you entered the store, and you stated that you wanted to purchase lipstick for your girlfriend.[14] Ms Cortaz helped you pick out a lipstick and went to the service counter to process the purchase.[15]
[14]Ibid [12].
[15]Ibid.
11As Ms Cortaz was packaging the lipstick, you stood at the counter and reached into the rear of your pants, removing a black-handled knife with a serrated blade.[16] You hid this knife behind the counter.
[16]Ibid [13].
12You handed her a $10 note and when she opened the cash register, you held out the knife towards her and stepped around the counter.[17] Whilst pointing the knife at Ms Cortaz you moved her hand away from the register, causing her to step away.[18] You then removed approximately $60 and ran from the store.[19]
[17]Ibid [14].
[18]Ibid.
[19]Ibid.
13Mr Fox, who was working at the back of the store, then called Triple 0 and Police attended the store.[20]
[20]Ibid [15].
Police Investigation
14On 4 September 2020, members of Victoria Police executed a search warrant at the residence of your girlfriend’s mother.[21] You were located, arrested and transported to Morwell police station, where a record of interview was conducted.[22]
[21]Ibid [16].
[22]Ibid [16], [17].
15You gave a largely “no comment” interview and in some instances denied that you were the offender.[23]
[23]Ibid [17].
16You were then charged and remanded in custody.[24]
[24]Ibid [18].
Nature & Gravity of Offending
17The offence of armed robbery is a serious charge, as reflected by the maximum penalty of 25 years' of imprisonment. Your offending took place whilst your victims were at work in retail premises. They were “soft targets”. This type of offending is prevalent in our community.
18The presentation of a knife in such circumstances is inherently serious. In addition to this, during the second incident you physically touched the victim whilst pointing the knife at her, causing her to step away. In his statement to police, the victim of the first incident describes feeling threatened and fearing for his safety during the offending. The victims were entitled to feel safe at work, and whilst no victim impact statements were made or tendered, they were undoubtedly terrified by your actions.
19Your offending was not sophisticated, but nor was it purely opportunistic.
20Both incidences involved a considerable degree of premeditation and planning. You attended at the stores possessing a knife with the apparent purpose of obtaining money to provide to your girlfriend.
21The second offence occurred the day after the first. You had time to reflect on your actions, yet you chose to offend again in the same manner as the first.
22However, your offending does not have the hallmarks of aggravated examples of armed robbery, such as the use of firearms, actual physical violence and you only gained a small amount of cash. I consider your offending to be at the lower end of seriousness for this type of offence.
Personal Circumstances
23Your counsel, Mr Dogger, prepared comprehensive written sentencing submissions on your behalf which were supplemented by an oral plea.
24You were born in June 1996 and were aged 24 years old at the time of your offending. You are currently aged 25.
25You experienced a childhood marred by profound disadvantage. Your mother was diagnosed with terminal cancer when you were three years of age. Upon learning of her diagnosis she pushed you away, believing this to be in your best interests. She sadly died when you were only four.
26Following your mother’s death you lived with your father and stepmother. Your father had three prior criminal convictions for sexual offending against children under 16. He left your household when you were 12 years old due to further allegations made against him.
27The Department of Families, Fairness and Housing considered that there is a significant likelihood that you had been subject to harm or at least exposed to harm from your father. You report being physically, but not sexually abused by him. Ultimately, your father died when you were 13.
28You then lived with your stepmother for a short period before becoming homeless and living on the streets. After several months you were located by the Department and placed into a residential unit, where you stayed for a little over a year. You then lived with friends, and sometimes on the street until you reached 18 years.
29You had very little contact with your stepmother after leaving her care. Your schooling was significantly disrupted, and you stopped attending mainstream schooling partway through Year 7.
30You became a father at the age of 16 and now have four biological children. You have had minimal contact with those children.
31As an adult you have experienced ongoing homelessness and have had only limited and sporadic employment.
Psychological/Psychiatric History
32You have a long history of mental health issues with seven presentations to mental health services between 2003-2015. You have previously been diagnosed with conduct disorder, autism spectrum disorder, likely reactive attachment disorder as a result of significant trauma experienced in your formative years. You have also had diagnoses of depression, anxiety, regular panic attacks, borderline personality disorder, substance use disorder, and antisocial personality disorder.
33On 27 August of this year, Dr Rachel O’Meara conducted a neuropsychological assessment of you. She concluded that:
(a) you suffer from a cognitive impairment;
(b) it is likely that your cognitive deficits negatively impacted your ability to exercise appropriate judgements, make calm and rational choices and to think clearly;
(c) your attentional and associated learning difficulties will mean that you will miss important information relevant to making fully informed decisions, particularly when under high attentional demand;
(d) your moderate to severe difficulty with abstract reasoning will also mean that you are likely to struggle to reason with information that is not straightforward or familiar to you in order to determine the range of options available, and the likely consequences of each option when making a decision;
(e) your poor impulse control will mean that you are likely to act prior to fully considering the consequences of your actions; and
(f) it is likely that your poor reasoning and poor impulse control contributed to the commission of the offences to which you pleaded guilty. Especially in that you stated motivation for committing the offences was as a means of obtaining finances for your partner in order to prevent her from being unfaithful and in this context:
(i)your poor reasoning likely meant that you were unable to generate alternative, more appropriate means of achieving your goal; and
(ii)your poor impulse control may have resulted in you acting without first considering the potential consequences of your actions.
34Mr Jeffrey Cummins provided the court with a supplementary psychological report dated 18 November 2021, and he accepts that your presentation is strongly suggestive of a diagnosis of ADHD and that you may require medication, rather than a further psychiatric diagnosis to confirm his provisional view.
Relevant Sentencing Considerations
Your culpability and degree of responsibility for the offence
35The High Court in the case of Bugmy noted the relevance of circumstances of deprivation and abuse that occurred during an offender’s formative years, “may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”.[25]
[25]Bugmy v The Queen [2013] HCA 37 [40].
36It was also noted that “…[t]he experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life”.[26]
[26]Ibid [43].
37And relevant to your case, the High Court explored the sentencing challenge of formative deprivation and abuse and stated:
“Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” [27]
[27]Ibid [44].
38The Court of Appeal in the case of Verdins, also discussed the effect of impaired mental functioning on culpability and concluded that it:
“…may reduce the moral culpability of the offending conduct, as distinct
from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.” [28][28]R v Verdins [2007] VSCA 102 [32].
39However, the Court in Verdins did confirm that:
“Whether general deterrence should be moderated or eliminated as a
sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.” [29][29]Ibid [3].
40Mr Dogger on your behalf, submits that these principles are applicable in your case to reduce your moral culpability for your actions.
41The Crown submits that despite the report of Dr O’Meara, your moral culpability is still relatively high, although somewhat mitigated by the challenges of your upbringing, in line with the approach taken by the High Court in Bugmy.
42Dr O’Meara’s report finds that your cognitive deficits likely “negatively impact…your ability to exercise appropriate judgement, make calm and rational choices and think clearly”. Your moral culpability may be reduced if your offending was committed on the spur of the moment. However, it was not. You planned to take a knife and go to both stores in order to commit a robbery. Furthermore, you committed the second offence the day after the first. This gave you time to reflect on what you had done in the first incident. Dr O’Meara’s report notes that you “would have been aware of the wrongfulness of…[your] actions in relation to the current offences”. Regardless, you decided to proceed.
43Dr O’Meara also found that your “cognitive deficits” would have been further exacerbated by the acute effects of substance use, including alcohol, cannabis, and methamphetamines at the time of the offending. Given that you have previously participated in multiple detoxification programs, and have been sentenced to Community Corrections Orders with drug treatment conditions, you ought to have been aware of the effect of substance use upon your behaviour.
44Mr Swansborough, your cognitive deficits, resulting from the combination of your deprivation, neglect and abuse in childhood, coupled with your possible ADHD and other diagnoses, clearly enliven both Verdins and Bugmy to reduce the emphasis to be placed on the sentencing principles of denunciation and general deterrence in the exercise of my sentencing discretion today. However, as the High Court in Bugmy observed, community protection remains a significant factor to balance against a significant reduction in your sentence.
Prospects of Rehabilitation
45You commenced consuming alcohol at 12 and illicit substances shortly thereafter. Throughout your life you have abused alcohol, cannabis, methamphetamine and heroin. You have attempted to cease substance abuse on a number of occasions, including a three month stay in a residential rehabilitation program. Dr O’Meara notes that your cognitive deficits were exacerbated by substance abuse at the time of your offending, and this impairment will likely continue whilst you continue to abuse illicit drugs.
46Prescription of methadone in prison has enabled you to remain abstinent in the custodial setting. You hope to access drug and alcohol counselling upon your release from custody and avoid other users.
47Given your long history of substance abuse, and repeated unsuccessful attempts at detoxification, unfortunately your prospects of rehabilitation must be viewed as guarded unless you can remain abstinent upon your release.
Criminal History
48You have a criminal history dating back 10 years. You have relevant prior convictions for theft, burglary, and unlawful assault, for which you have been previously sentenced to terms of imprisonment, most recently less than six months before the current offending.
49It is of concern that you returned to committing criminal offences so soon after your previous sentence in a manner which is a significant escalation to your past conduct.
50If you continue to abuse alcohol and illicit substances, your risk of reoffending is high. Given that you are still a relatively young man, I consider that an extensive period of support in the community upon your release is necessary to assist in relapse prevention and to protect the community.
Early Plea & COVID 19 Considerations
51This matter resolved prior to a committal hearing without the need for witnesses to be cross examined. This is an early plea of guilty and through that plea I accept that you have demonstrated some remorse for your actions.
52The COVID-19 pandemic has had a most significant adverse effect upon the justice system. The conditions in custody have been more onerous as a result of the pandemic. Concerns about catching the virus in the custodial setting have placed an additional burden upon you. Accordingly you are entitled to “an actual and palpable amelioration of your sentence” in accordance with the principles outlined by the Court of Appeal in Worboyes’ case.[30]
[30] Worboyes v The Queen [2021] VSCA 169.
Current Sentencing Practices
53I have had regard to current sentencing practices for the offence of armed robbery, particularly in relation to examples involving “soft target” victims. Mr Dogger on your behalf conceded that a term of imprisonment with a non-parole period is an appropriate sentencing disposition.
Conclusion
54In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible, that offenders are rehabilitated and reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering those circumstances. And the sentence must be no more than is necessary to satisfy those various objectives of sentencing.[31]
[31]Azzopardi v The Queen [2011] VSCA 372.
55The purposes for which a court may impose sentence include just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.[32]
[32]Sentencing Act1991 (Vic) s 5.
56General deterrence is an important sentencing consideration in your case, but it will be moderated for your personal reasons I have outlined. However, other members of the community must still understand that serious criminal offending such as armed robbery, particularly on “soft targets” such as retail store attendants, will attract significant punishment.
57In your case, specific deterrence and protection of the community must be given some weight, given your prior criminal history and your use of drugs and the escalation in your offending. Just punishment is a consideration but given the Bugmy and Verdins considerations I have referred to earlier, denunciation is reduced in my synthesis of your sentence.
Sentence
58Mr Swansborough, balancing all of these considerations I must I sentence you as follows:
(a) I convict and sentence you on both charges to an aggregate sentence of imprisonment of 34 months. That is, your total effective sentence is 34 months.
(b) I fix a non-parole period of 22 months.
Pre-Sentence Detention
59You were arrested on 4 September 2020 and remanded into custody. Pursuant to s 18 of the Sentencing Act 1991 (Vic), the period of 458 days of pre-sentence detention, not including today, is thereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the court records.
S 6AAA Declaration
60Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty and been convicted of these offences after trial, I would have sentenced you to a term of four years and six months with a non-parole period of 36 months.
Ancillary Orders
61I make the disposal order sought by the Crown.
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