Director of Public Prosecutions v Tilyard

[2017] VCC 451

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01883

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL TILYARD

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2017
DATE OF SENTENCE:	28 March 2017
CASE MAY BE CITED AS:	DPP v Tilyard
MEDIUM NEUTRAL CITATION:	[2017] VCC 451

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp	Office of Public Prosecutions Victoria
For the Accused	Mr A. Pyne	Victoria Legal Aid

187539  Pages 1 - 10

 

 

HIS HONOUR: 

1Russell Tilyard, you have pleaded guilty to one charge of armed robbery. 

2The prosecutor opened the circumstances of the offending by reading from a written "agreed summary of prosecution opening" which was tendered. 

3In short, on 8 February 2016, you entered a VT Dollar Deals store, having taken some measures to disguise yourself and cover a tattoo on your neck. After browsing and after a customer left, you placed an item on the service counter, removed a knife from your pocket and pointed at the victim who was processing your apparent purchase and you demanded money.  The victim opened the cash register and you took money from it. You then demanded that she open a second register, which she did and you took money from it. In all, you obtained about $200.  You then left, used some of the money to purchase food and discarded some clothing you were wearing.

4Obviously your offending is serious and it involves some planning as your counsel conceded.

5The victim was understandably very scared and the likely impact on her can be easily understood. 

6You were arrested in August 2016 and when interviewed made full admissions.  You told police you were having problems with depression and your relationship.  You said you had been using drugs.  You said you were, "all over the show" at time and did something stupid that you did not want to do.  You expressed remorse towards "the poor lady". 

7You have no prior criminal record, however you accept that you have committed some offending prior to the current offending which is expected to be dealt with in the Magistrates' Court relatively soon. A number of matters including making a threat to kill occurring in August 2015 which arose out of a dispute with your partner, plus breaches of an intervention order principally occurring in March 2016 are listed for contest mention on 31 March. 

8It seems that not only did you have an absence of prior offending until about August 2015 when circumstances in your life declined, but up until that time you had a positive good character.  Your counsel detailed your background and I will not repeat the detail. 

9In short, you were born in New Zealand and have seven siblings, one of whom lives in Australia.  You were raised in a setting of physical domestic violence and other disadvantages but seemed to have flourished at a boarding school for most of your secondary education.  The school was in proximity to your grandmother to whom you were close. 

10Unfortunately when aged 16 your parents separated, your grandmother died and you moved back to an area of New Zealand that you found difficult and then completed your secondary education in a high school.  After school you were able to find good work until about 2012, and in 2013, you moved to Australia with your partner with whom you had been in a relationship since 2010. 

11You had been in an earlier relationship for about two and a half years and during this earlier relationship a child was born, but your earlier partner moved to Australia.

12Your current partner, who gave evidence, had two children of her own before you and she had a child.  You were able to obtain work in Australia and in obtaining employment as a linesman labourer until 2015. 

13Your life became disrupted and your circumstances declined in July/August 2015 when you were made redundant, although taken back on as a casual you were terminated finally in September 2015. 

14Around this time you became using drugs.  Your conduct became erratic during this period.  Your partner contrasted your character prior to mid-2015 with your decline around that time.  Previously you were focussed on your family and were a good provider. 

15Your partner first noticed symptoms of depression when your sister‑in‑law died in 2013 but around the time you were first laid off, she said you began to withdraw.  As she put it you seemed to disappear physically and mentally.  You were emotionally distant and evasive, particularly concerning your attempts to find work. 

16Your partner took you to the doctor and you were thought to have anxiety and depression and prescribed medication.  You were not sleeping well and were angry and erratic.  You avoided your medication.  She described your frequent crying. 

17Although your partner did not describe the details of your relationship at this time, it seems clean that there must have been considerable conflict.  In December she had you removed from the house, although you continued to visit.  She said it was too much to have you around.  An intervention order had been in place since August 2015, although I assume that contact was permitted.

18You went into prison in August last year and it seems this has been beneficial.  You are making the most of your time in prison.  Your partner says you enjoy the responsibility you have been assigned in an management role over other prisoners.  She sees you regularly whilst you are in Melbourne and otherwise has very frequent telephone contact.  She considers that the person you were pre‑mid 2015 has returned.

19You have undertaken courses in prison, improving your qualifications for work, although you already had a number of skills.  Your counsel tendered documents to confirm the courses you have undertaken and the responsible role you have been assigned. 

20Character references from your brother‑in‑law and sister with whom you were living for part of 2016 were tendered.  Negative drug screens were tendered. 

21I accept that you have carried the additional burden in prison of worrying about your visa status in Australia and that the knee injury you sustained about six weeks ago requiring a scan and probable treatment, has also weighed on your mind.  Your partner emphasised your remorse for the current offending stating that you cannot believe you did what you did. Because you have made the changes you have, she is prepared to have you back as a partner and father to the three children on your release. 

22I was very impressed of the evidence of your partner. 

23I am satisfied that your offending is quite out of character and that it occurred at a time that your life was in disarray.  You were depressed and were taking drugs. 

24You wrote letters to the court, the victim and the owner of the shop you robbed expressing your remorse.  Your counsel argued that I should conclude that you are truly remorseful.  This is supported also by your partner and brother‑in‑law.  I accept that you are remorseful and genuinely ashamed of what you did. 

25You made admissions to police and have pleaded guilty at the earliest reasonable opportunity and must benefit from this.  Your plea saves time, expense and the need for witnesses to give evidence and it also reflects remorse. 

26Your prospects for rehabilitation seem to be good, although it is always difficult to be certain about rehabilitation where drug use and mental state problems are involved.  However, you have support from your family and it is clear that you would be assisted by programs in the community to further your rehabilitation.

27Your counsel argued that I should release you on a community corrections order (CCO) without any term of imprisonment.  The prosecution argued that although a CCO was appropriate, this should be combined with a term of imprisonment.  I expressed the tentative view last week that I thought that the prosecution submission was correct.  Your crime is serious and as well as the desirability of fostering your rehabilitation deterrence, both specific and general as well as denunciation and just punishment remain pertinent considerations.  I had you assessed to determine your suitability for release on a CCO.  You were found suitable. 

28I consider the appropriate penalty to be as submitted by the prosecution. 

29You will be convicted and sentenced to nine months' imprisonment combined with a community correction order for 20 months.  The particular conditions in addition to the core conditions of the CCO will be as recommended by the assessor.  They are: 

30That you undertake unpaid community work and I order that you undertake 150 hours of unpaid community work;.           

31That you undertake treatment and rehabilitation for drug abuse;  

32That you undertake treatment and rehabilitation for programs to reduce re‑offending;     

33That you be under supervision. 

34And finally because of the recommendation, I am proposing to make an order with respect to judicial monitoring.  You will not be monitored by me but will be monitored by another judge, and I propose to fix a date for the judicial monitoring hearing in about three months' time and I will select a date in just a moment. 

35You have now served 240 days in pre‑sentence detention.  This is to be reckoned as time already served on the sentence I have imposed. 

36Have I got that figure correct, counsel? 

37MS ISAACS:  Your Honour, I calculate to 139.

38HIS HONOUR:  Sorry? 

39MS ISAACS:  The Crown calculates, I would submit 239 days, Your Honour.

40HIS HONOUR:  Oh, do you? 

41MS ISAACS:  Yes.

42HIS HONOUR:  I don't know where I got, one of us is wrong then.

43MS ISAACS:  ‑ ‑ ‑ 240, Your Honour it might be that that 240 figure might be inclusive of today.

44HIS HONOUR:  I wouldn't ordinarily include today.  It should not include today.  Have you made a calculation? 

45MR PYNE:  I have 239 as well.

46HIS HONOUR:  Well, I will be guided by both of you.  You are both likely to be correct.  If it turns out that you go away and you find that it is 240, get back to me and I will amend the order

47MR PYNE:  I will do that.

48HIS HONOUR:  You have now served 239 days in pre‑sentence detention.  This is to be reckoned as time already served of a sentence I have imposed. 

49That means in round terms that you will have about another month to serve in prison before you will be released.

50Identifying the sentence had you not pleaded guilty is highly artificial, however doing the best I can, had you not pleaded guilty I would expect I may have sentenced you to a term of imprisonment with a non‑parole period or alternatively to a longer term of imprisonment than I have ‑ let me start that again.  That cannot be right, because the maximum term of imprisonment that I could impose is 12 months.

51MS ISAACS:  That's so, Your Honour.

52HIS HONOUR:  So with the recent change in the law so I think it is inevitable that I would have sentenced you to a term of imprisonment with a non‑parole period had you not pleaded guilty. 

53I'm sorry to be thinking about this on my feet, I hate these s.6AAA calculations, although thinking about it as I sit here, I suppose it might have been possible that I might have imposed a period of 12 months on a CCO as would have been permissible.  It's very difficult to judge.

54MR PYNE:  Yes.

55HIS HONOUR:  I think, what I would have done in the absence of a plea of guilty.

56MR PYNE:  And a pre‑sentence detention doesn't count for the purposes of the 12 months, so Your Honour could theoretically have imposed an effective sentence 12 months from the date of sentence, not 12 months from the date of going into custody.

57HIS HONOUR:  Can I do that? 

58MR PYNE:  Yes.

59HIS HONOUR:  I thought there was a debate about that as to whether it can be done.

60MR PYNE:  There was on my ‑ ‑ ‑

61HIS HONOUR:  ‑ ‑ ‑ so PSD doesn't count? 

62MR PYNE:  On my reading of that, that's right.  What there was a debate about it was not declaring PSD.

63HIS HONOUR:  Yes.

64MR PYNE:  For the purposes of avoiding parole.  That was found to be a device that's not permissible but.

65HIS HONOUR:  So theoretically I could have imposed a sentence of.

66MR PYNE:  200.

67HIS HONOUR:  ‑ ‑ ‑ one year and 239 days, declare PSD.

68MR PYNE:  Yes.

69HIS HONOUR:  And combine the remaining 12 months with a CCO.

70MR PYNE:  Theoretically you could have done that.

71HIS HONOUR:  Well in those circumstances I think it is probably more likely in the context of this case that I would have imposed a sentence of imprisonment combined with a CCO but it would have been a longer term of imprisonment than I have imposed.  It would have been at least 12 months, probably longer.  That's the best I could do under 6AAA.

72MR PYNE:  Thank you, Your Honour.

73HIS HONOUR:  Is there anything else that I haven't covered?  There were no ancillary orders, were there? 

74MS ISAACS:  No, Your Honour, only just the residential of the forensic sample, Your Honour, that was it.

75HIS HONOUR:  That's not something that I make an order about.

76MS ISAACS:  No, Your Honour, it is automatic.

77HIS HONOUR:  Okay.  Thank you both very much.  I will leave the Bench. 

78(Short adjournment.)

79HIS HONOUR:  We can't complete the paperwork until I identify a date for the judicial monitoring here and so I will just get my diary and do that.  I won't be here as I said.  Some other judge will conduct that hearing in three months' time and whether there will be a need for any further initially monitoring will depend on what happens on that day.

80MR PYNE:  Yes, Your Honour.

81HIS HONOUR:  Can somebody give me a calendar, please.  Would you nominally appear on the judicial monitoring? 

82MR PYNE:  No, my understanding is that ordinarily we don't.

83HIS HONOUR:  When you say 'we' you mean Legal Aid, do you? 

84MR PYNE:  Yes Legal Aid.

85HIS HONOUR:  Okay.  I know the OPP doesn't unless there's a request.

86MS ISAACS:  That's so.

87HIS HONOUR:  Let me just check.  I think I will make it on a Friday morning, 30 June.  I think they are normally fixed, I would anyway at 9.30 in the morning so I will select that time.  It will normally be in one of the lists rather than before a single judge.  We'll just see what happens.  30 June, 9.30 in the morning.

88MR PYNE:  If the court pleases.

89HIS HONOUR:  Okay, I will leave the Bench again and come up when the documentation is ready.

90(Short adjournment.)

91MS ISAACS:  My sincerest apologies, Your Honour.

92HIS HONOUR:  That's no problem, no problems.  The document has been prepared so we will Mr Tilyard sign it.  Would you see please, Mr Pyne? 

93MR PYNE:  I will, Your Honour.  If you would both attend on Mr Tilyard, thank you. 

94(Offender signs documents).

95HIS HONOUR:  Thank you.  There we go.

96Okay thank you both again.  I'll leave the Bench.

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