Director of Public Prosecutions v Trent

[2018] VCC 353

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01439

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE TRENT

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2018
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Trent
MEDIUM NEUTRAL CITATION:	[2018] VCC 353

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery (1 charge)
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: DPP vDalgliesh (2017) ALJR 91, 1063, DPP vL’Elievre [2018] VSCA 60
Sentence: Convicted and sentenced to six years’ imprisonment with a non-parole period of four years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gleisener	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Lindner	Fitzroy Legal Service

Pages 1 - 9

 

 

HIS HONOUR: 

1Yes, in the matter of Trent.  Mr James appeared on behalf of the Director in the hearing which was on 15 March 2018 and Ms Gleisner today, and Mr Lindner has appeared on both occasions on behalf of Mr Trent.

2Mr Trent is aged 50, and was 48 when he committed the crime for which he has pleaded. He was born on the ninth day of December 1967. He is currently on a disability pension. The plea, as I said, was to indictment No.G12561007. There is only one charge on the indictment, and that is a charge of armed robbery, an offence prescribed by s.75A of the Crimes Act of this State.

3The fact that the maximum penalty prescribed by Parliament is one of 25 years is not only an indication of the seriousness of the crime, but an indication of the concern with which Parliament, and the community, views this crime.

4The circumstances of the armed robbery are detailed in Exhibit A, and such were accepted by Mr Lindner as being the facts upon which I am to sentence Mr Trent. 

5The offence occurred on 12 May 2016.  The victim was Mr Lee Wei Chew.

6The aspect of the element of being an armed robbery was made up in the fact that Mr Trent had either, in the opening it says, a pistol or a shotgun.  Mr Chew was robbed of money, a mobile phone and a credit card.

7The background circumstances are somewhat confused, however at the time of this offence he had in the car with him a Ms Nesci. She played no part in the armed robbery, but subsequently did use the credit card taken from Mr Chew, and was charged and dealt with in that matter.  Mr Zebel, who was a co-accused, and performed some role in so far as the armed robbery is concerned, has not been dealt with to date, and is part of a fitness to plead application.

8The circumstances of this armed robbery are very serious and concerning.  The victim, Mr Chew, was on his way home from work at 1 am in the morning.  He works as a chef in a well-known Melbourne Restaurant.

9He had pulled up at Gordon Street, Maribyrnong.  Apart from being a well-known street, it is also apparently a street reputed for drug dealing and various nefarious goings on, associated with that milieu.

10It would appear that Mr Chew was totally unfortunate, and by way of simple circumstance, came upon a situation where he pulled up in the area.  There is no suggestion that the victim was, in any way, involved in the activities said to take place at Gordon Street.  It was apparently by pure coincidence that he stopped his car there.

11Thereafter, essentially, he was set upon by Mr Trent.  Firstly, he was approached by Mr Trent as to whether Mr Chew wanted to do a deal in so far as drugs are concerned.  Having rejected that, Mr Trent then set upon him with a firearm.  He requested his keys and when Mr Chew refused, and locked the windows, Mr Trent produced the firearm from beneath his clothes to the extent that he scared the victim into opening up the doors. Mr Trent entered into the car and stole from Mr Chew the items that I have detailed.

12The co-accused Mr Zebel, apparently was interested in the car and asked the victim to open up the boot, but those matters do not concern Mr Trent.  There was also another person who has not been charged, who was in the vicinity, but he was either affected by drugs or carried on in a manner which really is not necessary for this Court to be concerned with. 

13Just to finish the facts, thereafter Mr Chew was followed to a garage where he withdrew $300 and gave it to the co-accused. As I say, Ms Nesci used his credit card apparently to pay for food and petrol, at least for the prisoner, if not for others. 

14The victim went off to the Footscray Police Station and the less said about the police investigation thereafter the better.  Suffice to say ultimately, Mr Trent was arrested in New South Wales on 14 September and extradited. He has been remanded since that date, I think, the figure, Madam Prosecutor is it 554 days?

15MS GLEISENER:  Yes, Your Honour.

16HIS HONOUR:  There is no victim impact statement filed.  However the Court does not need much imagination to understand the situation that Mr Chew found himself in. The sentence imposed by Parliament, is to reflect the seriousness of attacks of this type taking place upon innocent victims of the community who, as I said, are on their way home from work.

17The learned prosecutor reminded the Court that it is necessary to take into account s.6AAA.

18The offences for which Mr Trent comes before this Court, but for the manslaughter, are the most serious he has been convicted of. His priors are substantial, if not of the same degree has he is before the Court today.

19His history unfortunately is littered with convictions for theft, burglary and dishonesty matters and driving offences. 

20The violence in his background is limited.  He was in January 1995, first gaoled and then again for a further assault in 1995 and again in 1996.  Despite those periods of imprisonment, he has, it would appear, over the years, been treated relatively leniently, and been given many, many opportunities by the Courts to change his lifestyle. 

21Mr Trent, was sentenced for manslaughter on the 27th day of June 2007 to a period of seven years with a minimum of four.  That manslaughter took place by the use of a knife and the circumstances appear somewhat unclear.  The sentencing remarks in that matter were tendered as Exhibit 6.  They were the sentencing remarks of then Kaye J.  Mr Trent was, in fact, released from that sentence in 2009. 

22Mr Lindner submitted his written submissions, Exhibit 1.  There are a number of medical documents relied upon.  I will go to two.  However just to identify them, there was the neuropsychological report of Kennedy, Exhibit 2, of 2 March 2018.  The neurological report of Brewer, Exhibit 3, which is 16 June 2007.  No doubt associated with the plea before Justice Kaye.  There is then a psychological report of Elizabeth Warren of 15 August and there are, in fact, two of those.  One being Exhibit 4 of 15 August 2017, the second Exhibit 5 of 22 June 2006. 

23As I say, Exhibit 6 is the sentencing remarks of Kaye J.  Exhibit 7 is the letter from the Shoalhaven Drug and Alcohol Service signed by Ruth Power the Nurse Manager of that organisation and finally Exhibit 8, the character reference of Jennifer Sterling dated 14 March 2018, which was a very powerful supporting letter for Mr Trent.

24In so far as the psychological material or the medical material, in so far as Exhibit 3 was concerned, if I simply go to p.14 of that report under the summary, the long-standing criminal activity of Mr Trent is noted.  The head trauma that he received apparently from an early motor accident, further issues from being hit with a baseball bat and a further motor accident and he suffered bifocal epilepsy, secondary to brain injury and was apparently under epileptic medicine for that. He unfortunately, with that history, continued to poly-substance abuse.  Not a great mixture.

25At p.15 as to his psychiatric condition, as Mr Brewer correctly said, such a diagnosis was beyond his area, however he noted that Mr Trent had reported long-standing anxiety, post-traumatic stress and substance use disorder. 

26As to the circumstances, Ms Kennedy noted the background to this offending. I do not think it is necessary for me to go over that, she was of the opinion that the brain injury and its issues will continue to impact upon Mr Trent. Apparently the impaired memory can be ameliorated by memory aids, and in order to effect change or rehabilitation there is a need for long-term, well-structured intervention and support.

27In so far as the inevitable imprisonment of Mr Trent for this crime, it was noted on p.16, a recommendation from Ms Kennedy that there be well-structured ongoing and intense supports for any transition ultimately. There is no suggestion that the current cognitive condition would suffer in gaol, and it would appear certainly in regard to his substance abuse and the matters I have been told he seems to be doing well in gaol in the sense that he is not partaking - if one is to accept the assurances given by Mr Lindner - in drugs.

28Exhibit 4 is the report of Ms Warren of 15 August 2017.  Essentially, the summary given therein is sufficient, given the matters I have already referred to.  Mr Trent has chronic polysubstance use disorder that must be successfully treated for him to have any chance of remaining as a law abiding citizen in the community.

29As I said, he is now 50.  It is clear from all the material presented to me that Mr Trent has no future in the community, and he cannot enjoy his family or his grandchildren unless he does stops the drugs.  It is hoped that the intent that has been indicated to me is maintained.  At the moment, he realises the difficulties, he needs to find the resources somehow, and also hopefully on parole needs a structured environment whereby he undertakes the opportunities offered to try and change his life. 

30As I said during the plea, given his background the two very serious offences now to which he has pleaded, he has got to a stage that something has to change, unless he is to spend the rest of his life in gaol. 

31In support of the attempt by him to change his lifestyle, Mr Lindner spoke of your instructions that you have been drug free over the last 18 months.  It was submitted by Mr Lindner that there were, in fact, urine sample tests to prove this.  You have suffered to a degree, which has been reported to the court more than once in the last few weeks, with the 23 hour lock down which took place in Port Phillip following, I think it was the fire last September.  The Court can only express surprise that prisoners would be on lockdown for such a period.

32The fundamental point that Mr Lindner wanted to make was that it was possible for Mr Trent to change his lifestyle.  Upon his release in 2009, as is demonstrated from his prior sheet, while there has not been no offences, there have certainly been, up until this occasion, no serious offences or offences of violence.

33As I have said, he has a strong supporter in Mrs Sterling, as set out in her impressive letter.  He has got a son and grandchild, he instructs Mr Lindner, that he wants to change his life so he can enjoy their lives.  I do not know whether we actually - yes, we did.  Exhibit 7 was the letter from the Shoalhaven Support Centre in so far as - called the Illawarra Shoalhaven Local Health District and it is the drug and alcohol service.  He has taken himself to that service for assistance and been involved in quite a significant amount of ongoing treatment, the details of which are set out in those notes.  It is to be noted that that was when he was 48 and these notes relate to a period of, it appears, August of 2016.

34Unfortunately, of course these offences occurred when he was down in Melbourne earlier in that year, and they obviously occurred when he was afflicted by drugs.

35Mr Lindner submitted that I should conclude that the objective criminality is in the mid-range or low to mid, I take a different view to that, I find it is in mid-range to high, given the circumstances. 

36In so far as his written submission Exhibit 1, Mr Lindner took me to most of the matters that I have referred to by way of chronology and overview, personal history.  I accept that Mr Trent is entitled to a discount because of the plea of guilty, not only because of its assistance to justice, but because of the saving in time and effort especially of the victims in this matter, and its utilitarian benefit.

37It was, given the circumstances, made at the earliest time. The psychological and the neuropsychological material was not tendered for any Verdins or Bugmy basis, but simply that some mitigation might be allowed for the difficult social conditions suffered by Mr Trent in his early life. 

38The problem is that those circumstances have been apposite for all of his criminality.  I do not find any basis in those, given the circumstances of this case, for any mitigation, although I accept that the understanding by this Court of a depressed and deprived upbringing unfortunately brings with it often post-criminal activity.

39I accept the efforts as demonstrated in the Shoalhaven material and his instructions that he has post-offence, been attempting to engage in drug and alcohol treatment and to cater with his ongoing problem of affliction to polysubstances. 

40Mr Lindner somewhat optimistically suggested that Mr Trent has some prospect of rehabilitation, with the support of the adult Parole Board.  I think one must realistically think such rehabilitation and, chances of it, must be guarded.

41Very high on the necessary factors in sentencing here, given the seriousness of the crime, is general deterrence, denunciation and punishment.  This is a grave offence as demonstrated not only by the circumstances, but by the maximum sentence laid down by Parliament.  As I said, I do not reduce the culpability in any way, although I understand that his early social deprivation both sets up and explains the criminal behaviour here. 

42It is of interest to note that this argument if you might say as to the use of the Bugmy principles has been discussed this week by the Court of Appeal in DPP v L’Elievre [2018] VSCA 60.

43I, at all times observe in sentencing the principle of parsimony, and one hopes this Court is as merciful as it can be.  The proposition put by Mr Lindner as to the appropriate range was questioned by me.  It seemed to me that the material upon which it was based, that is the Judicial College material as to sentences, being VSCA 3215(2)2 which related to low range armed robbery sentences, needed to be supplemented by the additional material, VSCA 3215(2)1, which is in the high range armed robbery sentences.

44As the High Court said recently in Dalgleish (2017) ALJR 91, 1063, [49] the fundamentally important aspect, apart from the guiding principles set out in s.5 of the Sentencing Act, to which a Court must adhere to is the concept of individualised justice.  That is, it is necessary to sentence Mr Trent based upon his particular circumstances and based upon the objective criminality as I have found in this matter. As I have already indicated I find that to be at a serious level.

45In sentencing however, of course, I take into account all of the matters put in the plea by Mr Lindner.

46Doing as best I can to take all of such matters into consideration, Mr Trent, I would ask you to stand while I pronounce sentence:

47I have determined the appropriate sentence for this serious crime is six years gaol. I order that the period that you must serve before being eligible for parole is four years. Pursuant to s.18 of the Sentencing Act, I declare that the 554 days that you have served on remand to date be deemed as service of this sentence, and that a record of such declaration be made in the records of this Court.

48In so far as the provisions of 6AAA are concerned, doing as best I can to comply with the demands of Parliament, it is requested by Parliament that a judge sets out for a prisoner what is the result of him pleading guilty.  I can say to you that had you not pleaded guilty, the sentence I would have passed upon you is a maximum penalty of eight years with a minimum of six.  You will see from that that you have had a significant discount given to you, in so far as your plea of guilty is concerned. 

49As I say, it is a very difficult requirement for a Judge because it only relates to one factor, but it is important that that matter is detailed to you.

50Mr Lindner or Ms Gleisener, any other matters that I need to attend to?

51MS GLEISENER:  No, Your Honour.

52MR LINDNER:  No, Your Honour.

53HIS HONOUR:  Yes, thank you Mr Lindner.  Yes, well good luck Mr Trent.  I hope that you continue on the path that you have indicated to the Court and I hope, once you have done your minimum term, you get to a situation where you do enjoy your son and his children. We do not want to see you anymore, all right, because you are getting to a stage where you are just getting big sentences, all right. All the best.

54OFFENDER:  Thank you.

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