Director of Public Prosecutions v Taylor

[2019] VCC 1550

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-01379

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAIDEN TAYLOR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	23 September 2019
DATE OF SENTENCE:	25 September 2019
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1550

REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Pleaded guilty to attempted armed robbery – aggravated burglary – theft of motor car – summary charges -  contravene family violence order -  drive whilst disqualified – careless driving – failing to stop after an accident – imitation firearm used on soft target – feared for life - recognised by witnesses – careless driving  suicide attempt – relationship breakdown  - aged 23 – youthful offender – no prior convictions -  drug use from 14 years of age – cannabis – ecstasy – ice – physical emotional verbal abuse from early age – bullied at school – lived with caring grandmother for short time – returned home to neglect – rehabilitation guarded – sister great support – stable accommodation on release – CCO provides necessary support
Cases Cited: Marrah v R [2014] 119 [15]; Bugmy v R [2013] HCA 37 [44]
Sentence:6 months imprisonment (163 days pre sentence detention) 3 year CCO  200 hours with programs.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	OPP
For the Accused	Ms L. Dubroja	Slades &Parsons

HER HONOUR:

1Kaiden Allan Taylor, you have pleaded guilty to one charge of attempted armed robbery; one charge of aggravated burglary and one charge of theft.  You have also pleaded guilty to four summary charges listed as Charges 6, 7, 8 and 9.  Charge 6 is contravening a family violence order; Charge 7 is driving whilst you were disqualified from driving; Charge 8 is careless driving and Charge 9 is failing to stop after an accident.

2On 12 April 2019 just before 11 pm you went to the premises of Cellarbrations liquor in Kangaroo Flat.  You were wearing a black hoodie and a black mask over your face.  The owner of the premises, Mr Shu Hui was standing behind the counter when you approached and he saw you holding a small silver imitation firearm in your hand, pointing it at his face.  You said to him, 'Give me the money or give me the till', and you repeated the demand whilst still holding the imitation firearm to his face.

3At first Mr Hui had thought it was a joke but then realised it was a real robbery.  He feared he would die if you shot him, so he decided to give you the money.  You walked behind the counter to where Mr Hui was standing.  You put the imitation firearm in your pocket and asked for the money again.  You removed your mask and Mr Hui could see your face and head clearly. 

4You had been observed by two witnesses as you entered the shop.  They were sitting in a car parked outside and saw you pull a balaclava over your face as you approached the door.  They then saw you approach the counter inside, pull out what appeared to be a gun and point it at the victim.  Seeing that, they entered the shop and saw you behind the counter.  They asked Mr Hui if he was okay, and at that point you left the shop and walked down the street.  Another witness was outside the shop and had seen what had happened.  As you left the shop, he recognised you and he left and rang the police.  Those details make up Charge 1, the attempted armed robbery.

5Early this year you had been in a relationship with a woman for about eight weeks, according to her, ending on 3 or 4 April. I shall refer to her as the complainant.  You believe it was for a longer period.  On 9 April, she had taken out an intervention order against you and you were in court when the order was made.  One of the conditions was that you not come within 200 metres of her address.  Between 9 pm on 14 April and 9.20 am on 15 April, you entered her house where she was asleep with her young son, aged about one year.  You took the keys to her car and drove away in her car.  Those are the indictable offences No.2 and 3, aggravated burglary and theft, and Summary Charge 6, contravening a family violence order.

6At about 4 am on 15 April you drove the car north along Pall Mall, Bendigo in an erratic manner.  You lost control of the car and the car fishtailed from left to right before colliding with a pole in the centre of the road.  This was captured on CCTV footage, showing the car skid and turn erratically and coming to a sudden stop.  Witnesses heard a massive screech of tyres and a loud crash.   A witness then saw you get out of the car and ask asked if you were alright.  You did not answer and ran away.  Those are summary Charges 8 and 9, careless driving and failing to stop after an accident.

7At the time you were disqualified from driving because you had failed to complete a drug behaviour change program, and that is summary Charge 7.

8At 9.20 am that day the complainant awoke to find you in the laundry of her house.  You handed her car keys to her and she asked why you had them.  You said you had needed her house keys which were attached to the car key and you told her not to ask questions.  She then found her car had gone and she rang the police who arrested you shortly afterwards.  Later the police searched her house and located the imitation firearm, a black hoodie, a balaclava and the other items belonging to you.

9You denied any knowledge of the armed robbery, denied that the CCTV footage depicted you and said you did not know when you were last at the complainant's house.  You were remanded in custody and have remained there. 

10The three charges on the indictment are all very serious offences which provide for lengthy maximum prison sentences.  The maximum penalty for aggravated burglary is 25 years; for attempted armed robbery 20 years; and 10 years for theft.  Summary Charges 6 and 7 also attract prison sentences: two years for contravening a family violence order and two years or a fine of 240 penalty units for driving whilst disqualified.  For careless driving the maximum penalty is a fine of 12 penalty units, and for failing to stop, five penalty units. 

11I should note at this point that you later disclosed that in colliding with the pole in the street that night, you had intended to commit suicide.  You were drug affected and had not slept for six or seven days and were self-harming.  The realisation of the attempted armed robbery had hit you hard. 

12This was a disgraceful series of offending for which I understand you came to feel ashamed and remorseful.  The shopkeeper was in a situation where he was vulnerable to this sort of offending. 

13Sadly, it is all too prevalent that a person dealing with the public as Mr Hui was, can be the victim of desperate offenders like you, determined to look after their own needs at the risk of terrorising others.  Mr Hui told the police that he was fearful that he might die because of the imitation firearm, which had the appearance of a real gun, pointed at his face at close range.  The maximum sentence for attempted armed robbery of 20 years' imprisonment, which I just described, indicates how seriously it is regarded.

14It follows that the sentence I impose should deter others who might plan to offend in this way.  You did so to obtain money for drugs and you carried out a plan which had been hatched together with others, who backed away from it, but you chose to continue.  Of course, it was a clumsy plan and you were going to be easily identified by your actions in removing your disguise, and so that lowers the gravity of the offence slightly.  The offence should also deter you, yourself, from further offending although in your case the best protection for the community from any further offending by you, is for your long-standing and entrenched drug addiction to be dealt with.

15The other offences occurred in a different context.  You had known the complainant since your teenage years and had become highly dependent on her.  She was someone you could talk to at times when you were very socially isolated.  An illustration of that is your life at the age of 16, living alone in accommodation rented by your mother, not going to school, not working but using drugs.  When the relationship with the complainant ended early this year you did not see it that way and that led to your offending, including the loss of her car.

16There are very persuasive mitigating factors in your case, which call for considerable leniency.  You are still at the age of 23, a youthful offender for whom rehabilitation is of great importance.  You have no prior convictions which is unusual for a youthful offender with a serious drug addiction such as yours, dating from your early teenage years.  While in custody you have sought out drug programs and other programs which are not always available to those on remand.

17Your history of drug use has been set out in a report provided by neuropsychologist, Dr Loretta Evans dated 16 August 2019.  From the age of about 14, you began using cannabis daily at the rate of seven grams per day, the supply of which was assisted by your mother.  At the same age you consumed ecstasy pills, transitioning to speed and by the age of 17 or 18 you were using a gram a day.  From the age of 18 you also began using crystal amphetamine or ice.  Since being imprisoned, you have achieved detoxification for the first time.  Dr Evans considered you have gained some insight into this history in stating to her that you regret that it continued for so long and caused the loss of relationships.  You told her that you do not intend to touch drugs ever again. 

18You are the second-born child of your mother, with an older and a younger sister.  Your father, who it seems was an alcoholic and had a violent propensity, was also the father of the elder of your sisters.  Your parents separated soon after your birth and you had no contact with your father until you were six, when he was briefly in contact with you and sporadically after that.  One of your memories is of being abandoned by him when at the age of seven, you returned to the house to find him gone and the house empty.

19Your mother re-partnered with a man who was a violent alcoholic and the family was subjected to physical, emotional and verbal abuse.  One instance of violence at his hands has left you with permanent physical scaring.  Your mother had a drug addiction which she funded through prostitution and she was unable to protect you.  Your elder sister left home to escape the violence when she was about 14 or 15 and went to live with your grandparents in Numurkah. 

20You remained with your mother and your younger sister.  Your mother and stepfather separated when you were about 12 and eventually you went to live with your grandparents, but following an unhappy first year of high school, I think it was six months according to your grandmother, you returned to live with your mother.

21In Numurkah you had had the assistance of an aide who took you to school each day and provided one-on -one teaching for you, but you could not engage at school and you were badly bullied.  You found it easier to return to your mother because she would not make you go to school.  Your progress at school was so poor that you were considered to have an intellectual disability and were even granted a disability pension.  Dr Evans found you had no such disability and her opinion was that but for your disadvantages from early childhood, you would have achieved at average levels.

22According to your elder sister’s evidence your mother condoned your drug use and provided money for it and you were deaf to your sister’s entreaties to stop.  This caused a rift between you and it only began to heal after you had been in custody for several weeks.  Since then, she has visited you twice weekly and written to you twice weekly as well.  She is an articulate woman who is a university student studying a double degree, and she was able to give evidence of your progress in discussing your feelings and plans for the future.  She was courageous in explaining the travails of your family and she will doubtless be a strong support for you as you attempt your rehabilitation.

23The entrenched disadvantage you have suffered over many years has played a major part in the causes of your offending, through seriously damaged self-esteem and capacity to socialise effectively, and likely mild brain damage from early drug abuse.  I cannot summarise this more concisely than Dr Evans, where she stated in her report:

'The most pervasive aspect of Mr Taylor's neuropsychological profile is a pattern of emotional detachment, disorganised thought processes and very limited emotional coping mechanisms.  These factors are likely to have contributed significantly to his continued polysubstance abuse, whereby drug use has served as a means of external dissociation in daily life'.[1]

[1] Ibid [40]

24There is well accepted legal authority which warrants childhood disadvantage being taken into account as having provided the foundation for the offending, as in your case.  It follows that these circumstances should reduce the degree to which the sentence should reflect the principles of denunciation and general deterrence, as you are not to be regarded as an appropriate medium for their full application[2].

[2] Murrah v R [2014] VSCA119 [44]

25It has been held by the courts in similar cases[3], and here I am quoting in particular from Marrah v The Queen:

'…circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice.  The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences.  The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour'[4].

[3] Bugmy v R [2013] HCA 37 [44]

[4] Murrah v R [2014] VSCA 119 [16] – [17]

26Applying those authorities, I take into account your circumstances of deprivation in that manner, while being aware that the community's need for protection is best served by your rehabilitation, rather than the broader and less tangible need for general deterrence. 

27You pleaded guilty at the earliest possible opportunity, even though initially you denied your involvement.  This plea is being heard relatively quickly after you were charged.  The plea is important because it has spared the witnesses from having to give evidence and has avoided a trial, and I also accept it as an indication of your remorse and the taking on of responsibility for your offending.  It means you are entitled to a discount on the sentence I impose.

28Your prospects for rehabilitation are somewhat guarded, even though there appear to be no criminogenic factors other than your history of drug abuse.  Dr Evans' report is a thorough neuropsychological assessment and her strongly expressed opinion is that your risk of recidivism is likely to be reduced by treatment of the psychiatric factors that underpin your behaviour.  She noted those factors to include the early childhood trauma and neglect you suffered, which she believes contributed significantly to your developing brain.  This would have been further exacerbated by your difficulties in learning because of neglect and severe bullying at school, and of course, by substance abuse at an early age.  She also noted a high degree of emotional dysfunction, which is consistent with the early childhood neglect and trauma you experienced. 

29The time you have spent in custody has provided you with an opportunity to become and remain drug free for some five months, which you have never been able to achieve before.  Prison has provided stability and routine which has been lacking in your life.  If your recent abstinence were to continue, combined with acquired insight, your prospects could be enhanced by intense counselling with ongoing psychiatric support.  Dr Evans considered that you need such treatment by a suitably qualified dual diagnostic clinician, with specific expertise dealing with younger offenders who have a history of child abuse and illicit drug use[5].

[5] Reportof Dr Loretta Evans dated 16/8/2019 p. 11

30You will have stable accommodation with your grandparents upon your release.  Your grandmother and sister, in visiting you regularly have demonstrated their current support and intended future support and your younger sister was in court as well, for your plea hearing.  I understand that your grandfather is not well enough to attend. 

31You have never worked but the experience of unpaid community work as part of a Community Correction Order might help to fill that gap.  You have been assessed as suitable for such an order.  It will apply to the three charges on the indictment and to summary Charge 6, in combination with a prison sentence.  Would you stand now please, Mr Taylor.

For Charge 1, aggravated burglary you are sentenced to four months' imprisonment;

For Charge 2, attempted armed robbery, six months;

For Charge 3, theft of a car, three months;

For Summary Charge 6, contravening a family violence order, three months.

All these terms are to be served concurrently, resulting in a total effective prison sentence of six months. 

For the remaining three summary charges I impose an aggregate fine of $500 and I will allow you six months to pay it.

For the charge of the theft of the car you are disqualified from obtaining any licence or permit to drive for six months.

The additional sentence is the Community Correction Order which will commence as soon as you are released in about two weeks' time.  It will last for three years.  You will be under supervision and you must perform 200 hours of unpaid community work.  You must also attend programs for treatment of drug abuse and for mental health treatment and monitoring.  You must also attend any programs to reduce the risk of reoffending, to which you might be directed.  The hours that you spend attending these programs may be credited against your unpaid community work hours.

I am also going to require you to come to court from time to time for what is called judicial monitoring.  The first date will be 26 November at 9.30 am, via video link from Shepparton court.  There will be no lawyers there; no one except for your case worker, although you may bring a friend or a family member if you wish to.  Otherwise, it will be just a conversation between you and me, and I will have a report about your progress which I will ask you about. 

The prosecution seeks an order for a forensic sample of saliva to be obtained, to which you have consented through your counsel and I make that order.  I must advise you that the police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary. 

An order for the disposal of the imitation firearm and a number of other items is also sought and I make that order, to which you have also consented. 

There is an application for compensation.  I will come to that in a moment, Mr Hayward.

Mr Taylor, if you had pleaded not guilty, I would have sentenced you to two years imprisonment with a non- parole period of 12 months. 

I declare that the 163 days of pre-sentence detention be reckoned as already served and I shall note that on the court record.

32First of all, can I just confirm that it is 163 days?

33MR HAYWARD:  Yes, it is.  That is right.

34MS DUBROJA:  Yes, it is, Your Honour.

35HER HONOUR:  Just be seated for the moment please, Mr Taylor.  Now, Mr Hayward is there any progress made on that compensation application?

36MR HAYWARD:  No, there is not.

37HER HONOUR:  All right.

38MR HAYWARD:  Accordingly, I withdraw the application.

39HER HONOUR:  Very well.  I will note that, thank you.  Now, there is some difficulty with printing out that order that Mr Taylor needs to sign.  There may be some delay while my associate attends to that.  It may be some time before that can be done.

40MS DUBROJA:  Yes, Your Honour.

41HER HONOUR:  However, as soon as it is ready it will be available for signature, and so Ms Dubroja, you may approach the dock at that time and 

have a look at the document at the same time and then I will sign it afterwards.

42MS DUBROJA:  Yes, Your Honour.

43HER HONOUR:  Are there any other matters?

44MS DUBROJA:  No, Your Honour.

45HER HONOUR:  Mr Hayward, any other matters?

46MR HAYWARD:  No, thank you, Your Honour.

47HER HONOUR:  Thank you. 

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