Director of Public Prosecutions v West
[2021] VCC 570
•10 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN WEST |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 10 May 2021 |
CASE MAY BE CITED AS: | DPP v West |
MEDIUM NEUTRAL CITATION: | [2021] VCC 570 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Mr J. Desmond | Stephen Peterson Lawyers |
HIS HONOUR:
1Shaun West, you have pleaded guilty to four charges of theft, one charge of armed robbery and one charge of prohibited person possessing a firearm. Those crimes carry maximum penalties of 10 years, 25 years and 10 years respectively. You are now 26 years of age and were 25 years of age at the time of the offending.
2You have pleaded guilty to a settled indictment and I accept that that plea of guilty indicates a degree of remorse. You must also get the utilitarian benefit of that plea of guilty saving the community the cost of a trial and the complainants in the matter the trauma of having to give evidence.
3You do have a very significant criminal history and those were indicated by counsel for the Crown. The sheer length of it is a little bit misleading in this situation. You have been incarcerated before both in adult gaol and in Youth Detention. You do not have any armed robbery priors, I have noted, but you do have a great number of priors for dishonesty and it would also appear that in the past you have availed yourself of firearms from time to time and you have got to understand that sawn-off shotguns are a one-way ticket and that is just something you are going to have to deal with.
4There are also three summary matters and I will be dealing with those in fairly brief terms.
5A summary of the offending is that in April 2016 you stole the number plates of a red Volkswagen Polo hatch and put them on another vehicle. On 2 April, you stole a Nissan X-Trail from the driveway of a car and put false registration plates on that. On 4 April, a Mr Hillman borrowed his mother's red Volkswagen - now that is a somewhat debatable point - and drove the vehicle to your residential address. At that point in time, he spoke to a Ms Layborn and you. On entering the premises, he observed the double barrel shotgun in the lounge room. This is the subject of the firearm possession charges I understand it.
6Mr Hillman then drove you to a nearby McDonald's and at that point in time you said to him apparently, 'You're lucky I like you, otherwise I'd stand over you for the car.' He then dropped you back off at that address. Despite that, the next day at approximately 4 o'clock, Mr Hillman and another drove that red car to that Sharon Street address again. You answered the door holding the same sawn-off shotgun observed by Hillman the day before and the two of them entered the house. You ordered the other to go to the backyard. You pointed the sawn-off shotgun at Hillman at close range and demanded the keys to the red Polo hatch.
7You took the keys and walked from the premises, leaving Hillman with the unidentified male. When you returned, you told Hillman to leave after being allowed to retrieve his backpack from the car. He went to the Cranbourne police station and reported the incident to his mother. The vehicle was valued at approximately $25,000.
8At approximately 5.09 pm on 6 April, a co-accused and you drove the car and at some stage during that point in time, the number plates were attached and reattached and I do not have to go through the details of all of that.
9At approximately 6 o'clock on 8 April 2020, one Simon Peake was driving his girlfriend's car in Morwell and you and your co-accused were in the red Polo, again with a different number plate. You stopped at the entrance of the Morwell East Football Ground and - well, it is debated what occurred but Mr Pete got out of his vehicle and approached your car, I suspect, probably to do something related to drugs and you told him you were taking the car. You entered the driver's seat and drove off. He then walked away and reported it.
10On 8 April 2010, you were seen in the vehicle going through Warrigal at a fast rate of approximately 170 kilometres per hour, being pursued apparently by another vehicle which then forced you off the road. There were two other instances of drive whilst disqualified and those basically speak for themselves and they are the summary matters.
11A Noah and Clay Ketchen approached your, I suppose, co-accused Winkelman and asked if he was all right after the vehicle had been written off. He picked up the sawn-off shotgun, pointed it towards them as he ran from the road. Mr Ketchen dropped his wallet and you picked up that wallet and kept it and that gives rise to the final charge of theft. The armed robbery obviously was the taking of Mr Hillman's mother's vehicle at the point of a gun.
12In this matter, the Crown have read out the victim impact statement, that being filed by the mother of Mr Hillman and therefore the owner of the car. I have taken into account the relevant parts only of that victim impact statement. That shows the sort of psychological effects that offending of this nature by the taking of people's personal property can indeed have and obviously I take it into account.
13The use of the firearm renders the offending more serious than might otherwise have been. I accept what Mr Gray on behalf of the Crown says in relation to that. You did threaten the day before to take the car. I accept that during the course of this you had been in a somewhat drug-induced state but I also in these circumstances take into account the milieu in which all this took place. But I am not too sure if Mr Desmond was very sensible in not going to all the background of it. But I think it is the situation where I do not know why Mr Hillman went back to your house again but I can only guess.
14In any event, I have taken all those matters into account bearing in mind that I think not such a spontaneous crime as described by your counsel but nevertheless relatively unpremeditated. The offending has to be regarded as serious of course with the application of general and specific deterrence obviously as well as denunciation and appropriate punishment.
15None of the principles of Verdins are relied on in this situation, just your relative youth at the age 26 which I accept is an age where people in your situation can sometimes turn their lives around. Having read in the very helpful submissions of your counsel of your background, it will be my deep suspicion there is a form of complex PTSD involved in all this somewhere that you - with your attitude to life - are prepared to accept what you have done and, that you have got to be punished for it. You have no intention to have any mental health treatment. They are matters for you and the life choices that you may one day regret. But who knows?
16In any event, I have to look at also the prospects of your rehabilitation, the risk of you reoffending. Rehabilitation is really up to you. I will be giving you a significant sentence with an extended period of time available for parole and hopefully that will assist you in rehabilitating. The risk of you reoffending will be totally dependent upon your non-use of drugs and the potential of you rehabilitating.
17I then look to matters personal to you. Obviously I have mentioned the plea of guilty. Clearly, at 26 you are still young. You have been incarcerated in various forms since you were a young boy, it would appear. You got to about, as I understand it, Year 8 in school. You finished or got past it and got through Year 10 at Turana and your life has been brought up from there. Boys who have effectively their teenage years spent in Turana have a moral outlook on life which is to be - is going to be very concerning at times. I can only hope that the maturation process allows you to realise if you continue on with this sort of lifestyle once you leave gaol, you will probably spend the rest of your life in gaol if not get yourself killed in some sort of altercation or some sort of confrontation with the police.
18However, I am not here to sentence on potentialities. It is a question of the reality of all this. I accept that the firearm was not loaded but as Mr Gray has pointed out, the victim certainly does not know that. It was not an armed robbery in public and again, I accept those matters. It still remains a serious example of armed robbery. But you are 26 and you have pleaded guilty and you have the benefits of all the submissions.
19You are now aged 26. You were raised in Moe with your mother, father and five siblings. You were the youngest child. It is clear from what is been put before me that your father was a very emotionally and physically violent man. You described to Mr Desmond in those circumstances that you regarded his harsh treatment of you and the other children as 'not a bad thing as it made me who I am today. I was able to stand up for myself because of it'.
20You were in trouble all through primary school for fighting and it is quite clear from having that sort of a background that violence can be the first response shown in terms of conflict and the like. It is never a flying start in life to have that. Your education because of all this has been very limited indeed. You took the view that even though life was bad as children because of your father, somehow or other, you all coped with it.
21It appears there was no substance or alcohol abuse in the family. Just the family violence. You probably have a deeper sense of justification in defending yourself than other young boys might have and it is understandable why that is. I have already mentioned that you were in fights at school. People have endeavoured to bully you and you never recalled as a child having anything nice for lunch or school lunches or anything like that.
22You went to secondary college in Morwell and to add insult to injury, your mother just got up and left. To this day, you still do not have an explanation as to why she went. After that, you resided with your other siblings, with your father and there was nothing left for you - as you said - kids at all. No note, no nothing. She was just gone.
23You achieved a partial Year 8 level as I have already said and Year 10 when you were in, as you described it, 'juvie'. You started using cannabis at around 12 and started stealing cars. You started using methylamphetamine and ice at around about the age of 16 years and then quickly produced to daily use. That has gone on for an extended period of time other than when in custody, I would imagine, and is going to have to be dealt with. You are well aware of the physical effect of ice use over an extended period will have upon you. And also, there is also the risk of what had happened to you and what you are almost certain to do to other people if you do not get that addiction under control.
24That will really be a matter for the Parole Board as to how they view that in the long term.
25You very candidly pointed out to your counsel that you used to steal cars because you lived in the valley and it was for convenience sake, with public transport not operating at night. It seems clear to me that despite all these difficulties you do not seem to be unintelligent at all. I think you have got a pretty good sense of what is going on and there is acceptance of your fate it would seem.
26You have never worked a day in your life and again, you were very frank when you spoke to Mr Desmond about that. You had a long period of time when you did not speak to your dad as a result of you giving him a hiding. You went and found your mother and really gotten nowhere with that. As I understand it, she now has dementia. The only person that would really support you is your sister Monica and no one in the family visits you when you are in custody.
27When you get out, she is the one that will have to look after you. This is why I think the extended opportunity at least for parole is justified in this situation. It is obviously in the community's benefit and I refer to cases such as Tonguonan. The community's benefit - if you could be rehabilitated is really for your benefit, as I said, the community's as well yours.
28Your drinking is problematic but it does not seem to have been the cause for all of this.
29Again, as indicated, you have been incarcerated on numerous occasions. It is a situation where you probably have priors - I counted eight - to become institutionalised and it is to everybody's benefit if that does not occur. It is all very well for certain sentences to be handed out to younger people. It just leads to disaster in the long term in my view. If it is a situation where you get out and you start using again, the Parole Board will reclaim you. You know that and if you can get through that parole period, you have got to have an extended period of time without the use of drugs and without offending and you have got the chances of you rehabilitating I think would be improved dramatically. You seem to have little in terms of social relationships other than with young or younger offenders. And you somehow or other have got to break that cycle.
30I am fully aware that having been effectively brought up in juvenile justice in Turana and the like that is a sentence much, much easier said than done. However, it is your life and people are entitled to be safe from you and if this sort of offending continues upon your release, someone one day will give you a very big sentence indeed.
31As I have already indicated, rehabilitation and reoffending is really up to you. The sentence has to be significant and accordingly I sentence on that basis, taking into account as well as I can all the principles contained in s.5 of the Sentencing Act.
32Totality plays a part in this also. Some of the sentences are probably going to be a bit low for what actually happened in terms of individuality. But totality does play a part.
33On the three summary matters, 30 days on each to be served concurrently with each other but that 30 days is to be served cumulatively upon the sentence I impose on the indictment. Sorry, one month each. Not 30 days. Are to be served cumulatively.
34Accordingly, on Charge 1, three months; on Charge 2, six months; Charge 3, the armed robbery, is three and a half years; Charge 4, the shotgun, 12 months; Charge 5, six months; and Charge 6, three months.
35I direct that one month of Charge 1, three month of Charge 2, six months of Charge 4, three months of Charge 5 and one month of Charge 6 be served cumulatively on the sentence imposed on Charge 3.
36That gives an effective head sentence of four years and eight months. With the cumulation of the summary matters, that gives an effective head sentence of four years and nine months.
37I direct your serve a minimum term of three years before becoming eligible for parole. I direct that 395 days be reckoned as having been served under this sentence. Insofar as loss of licence is concerned, on each of the charges of theft ‑ ‑ ‑
38MR GRAY: I can assist in that, Your Honour.
39HIS HONOUR: Yes, thanks.
40MR GRAY: There was one note - sorry to interrupt, Your Honour. But in relation to the speed dangerous, I advised the court that it was six months. However, if the speed alleged is greater than 45 kilometres per hour or more in excess of that permitted, it would be 12 months' disqualification.
41HIS HONOUR: Yes, all right.
42MR GRAY: That is pursuant to ‑ ‑ ‑
43HIS HONOUR: All right. I accept what you are saying.
44MR GRAY: ‑ ‑ ‑ 62(2). I just read just to check that again. That is my understanding. Yes. It is not less than six months if it is normally, but if the speed is more than 45 kilometres and in this case it is alleged it was somewhere about 170.
45HIS HONOUR: Yes, I accept that.
46MR GRAY: So it is 12 months, Your Honour.
47HIS HONOUR: Yes, all right. On the theft of motor vehicle charges, licence cancelled, disqualified for seven days. Insofar as the matter of speed dangerous is concerned, disqualification obviously for a period of 12 months. I direct that those disqualifications be served concurrently. I do not believe I can backdate that, Mr Desmond, and in this situation it probably does not matter.
48MR DESMOND: No.
49HIS HONOUR: No, all right. Pursuant to s.6AAA - 7 with a 5
50MR DESMOND: Are we going to get a printout of the court orders of this sentence, Your Honour, later?
51HIS HONOUR: Later.
52MR DESMOND: Because I just could not get ‑ ‑ ‑
53MR GRAY: I could not get that.
54MR DESMOND: I will speak to Your Honour's associate. I got the end result ‑ ‑ ‑
55HIS HONOUR: That is all your client is interested in ‑ ‑ ‑
56MR DESMOND: I know, I know. But the taskmasters at Legal Aid ‑ ‑ ‑
57HIS HONOUR: Sorry, I have got you. No, I will do that again for you slowly. Sorry. Yes, all right.
58The three summary matters, 30 days on each. Concurrent with each other.
59MR DESMOND: Yes.
60HIS HONOUR: Charge 1 on the indictment, three months.
61MR DESMOND: Yes.
62HIS HONOUR: Charge 2, six months. Charge 3, armed robbery, three and a half years.
63MR DESMOND: Yes.
64HIS HONOUR: Charge 4, 12 months. Charge 5, six months. Charge 6, three months.
65MR DESMOND: Thank you.
66HIS HONOUR: One month of 1, three months of 2 ‑ ‑ ‑
67MR DESMOND: Yes.
68HIS HONOUR: ‑ ‑ ‑ six months of 4 ‑ ‑ ‑
69MR DESMOND: Four. Three months ‑ ‑ ‑
70HIS HONOUR: Three months of 5 and one of 6.
71MR DESMOND: Six.
72HIS HONOUR: Cumulative on each other and upon - then which gets you to four, eight. The 30 days cumulative on that gets you to four, nine.
73MR DESMOND: Four, nine.
74HIS HONOUR: Minimum term of three.
75MR DESMOND: Three years. Yes, thanks for that.
76HIS HONOUR: Three ninety-five PSD.
77MR DESMOND: Yes, appreciate that.
78HIS HONOUR: You agree with all that?
79MR GRAY: I have almost got it down. One month of one, three months of two, six months of four and ‑ ‑ ‑
80MR DESMOND: He is older than me.
81MR GRAY: And I will get it off you. I will get it off you so - I will get it off Mr Desmond.
82HIS HONOUR: All right.
83MR DESMOND: Sounds like a disease.
84MR GRAY: He is sharper than me.
85HIS HONOUR: Yes, that is not good. It is everywhere. All right. Mr West, it is going to be up to you, all right? You really do not want to be still sitting in a cell when you are 40 talking to other old lags with the best units at Fulham or Port Phillip or anything like that. It is a pretty awful life if you keep doing it. So you are still only a young fellow. You are obviously still fairly fit. So you have got to understand the danger and problem that this causes for other people but you know - good luck to you and hope you can sort your head out. All right. Thanks.
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