Director of Public Prosecutions v Wright
[2016] VCC 107
•17 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-15-01992
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARLEY WRIGHT |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2016 | |
DATE OF SENTENCE: | 17 February 2016 | |
CASE MAY BE CITED AS: | DPP v Wright | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 107 | |
REASONS FOR SENTENCE
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Subject: Criminal law- sentence- armed robbery- Koori Court Division- powerful mitigating factors- application of principles in R v Morgan [2010] VSCA 15 and R v Mills [1998] 4 VR 235- Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr M Kats | Victorian Aboriginal Legal Service |
HER HONOUR:
1 Marley Wright, you have pleaded guilty before me to one charge of armed robbery and you have admitted your prior criminal record.
2
The offending happened on 19 June 2015 when you, together with David Miller, entered the Bottle-O liquor store in Kingsbury. Both of you surrounded the attendant, Mr Preethan Krishnegowda, and asked him, “Where do you keep your money?”. You produced a sharp metal object from your pants pocket and held it in your right hand towards the victim and said “Give me your money”. You thrust the sharp metal object towards his neck and he moved out of the way, jumping over the counter and retreating to the rear of the store. You then blocked his exit whilst Miller attempted to force open the till. Eventually you assisted Miller with this task and you were able to open up the till. You gathered up the cash and then you stole four bottles of spirits and left the store. You were seen running south along Plenty Road with
Mr Miller.
3 At the time you were aged 18 and he was aged 29. Mr Miller's matter has not yet been dealt with by the courts.
4 On 10 August 2015 you were arrested and made no admissions in respect to the offence.
5 Armed robbery is serious and that is reflected in the maximum penalty that I could, by law, impose and that is, 25 years’ imprisonment.
6 You entered a plea of guilty at the committal case conference on 25 November 2015 and it is accepted that you entered a plea of guilty at the earliest stage so that your sentence will be discounted accordingly.
7 Your matter proceeded in the County Court Koori Court Division and you were arraigned and pleaded guilty and then a sentencing conversation was held. Present at that conversation were Elders and Respected Persons, Aunty Pam Pederson and Graham Austin.
8 There were many family members supporting you present at the conversation, including your gravely ill father, some of your sisters and a brother, uncles and aunties and also there were other members from the aboriginal community, Uncle Bootsie Thorpe, and Darren Turner, all of whom spoke on your behalf. Your mother was unable to attend due to her chronic serious health issues.
9 You were very respectful to the Elders and Respected Persons and presented as an intelligent, articulate and insightful young man. You willingly participated in this process. You openly acknowledged your guilt and the wrongfulness of your behaviour and spoke openly about the difficulties that you have faced in the past and your reflections whilst you have been in custody. You told the court you had thought long and hard about your actions and you want, and need, to change your behaviour.
10 You accepted that you had run amok and that you now needed to refocus your life and have expressed a desire to undertake and complete a TAFE construction course. You wish to live with your Uncle Paul, who resides in Warrnambool. He is a respected man who undertakes tours of the Tower Hill area and is very involved in aboriginal cultural matters. He is very keen to support you and he wishes for you to have a more healthy lifestyle, to engage more closely with your aboriginal cultural heritage and he is a very strong support.
11 You expressed your desire of wanting to be a role model for your two young nephews and said to the elders that you want to be a person who can be looked up to. You acknowledge that you are coming into your manhood, and that whilst growing up you have been very misguided, not knowing where you came from or where you were going.
12 You have excellent family support and, in your words, insofar as the future is concerned, you said, “I want to give it a good crack”.
13 You accepted the strong comments that were made to you by both Elders and Respected Persons that what you did was very disturbing. However it was acknowledged that you are a young man with lots of potential who needs now to direct his energies to showing everybody how you can realise your potential. It is important that so many of your family and extended family members came along to court to support you effectively and that was stated by Auntie Pam.
14 Both your Uncle Paul and Auntie Doreen live in the Warrnambool area. They are settled there and have lived down there for more than ten years and are willing to support you. You also expressed a desire to take up football and boxing and a real desire not to resume your previous drug taking habits.
15 Darren Turner from Indigenous Prospects Training & Recruitment Agency, expressed his strong support for you. He has recently established the agency which has national contracts, and he stated that he will do his best to assist you in obtaining employment.
16 You are the youngest of five children and your Auntie Doreen spoke movingly about your family and the very real difficulties that you and your other siblings faced in childhood as a consequence of your parents’ problems with alcohol and their inability to properly care for their family. In your formative years she said you had a lot of problems and it is evident from the material that, as a consequence of your parents' substance use, there was domestic violence in the home, instability, transience and multiple placements. As a consequence you and your siblings had a history of involvement with the Department of Health and Human Services, Child Protection, over the years. Their first involvement with you commenced when you were only two. Your parents have suffered greatly from being members of the stolen generation.
17 You have had a problematic of education because of your transience. You have been to many schools and I noted that you have had very little by way of post primary education.
18 In sentencing you I must have regard to the fact that you are a youthful offender and that your ultimate rehabilitation is a very important. You admitted prior court appearances. There were some five appearances, all in the Children’s Court. They span the period from 3 August 2009 until 12 November 2014. You first appeared in that jurisdiction as a 12 year old and over the years it is evident the offending has become more serious. There were prior appearances for burglary and theft, unlawful assault, robbery and committing offences whilst on bail. Of particular relevance was that you were on probation at the time of this offending. You were placed on a probation order for nine months on 12 November 2014.
19 I noted that you were in custody following arrest between 10 and 28 August 2015 for a period of 19 days. That was the first time you experienced being in custody in an adult setting and that was a shocking experience for you. You were then released on the Koori Intensive Bail Support Program, (KISP), on 28 August 2015 and there were pretty stringent conditions that you had to comply with. I am satisfied that you went well on that program. You completed the detoxification program through Youth Support Advocacy Service, (YSAS) and you also engaged appropriately with Ms Wan, the Youth Justice Worker as set out in her report. On 27 October 2015 you appeared at the Melbourne Magistrates’ Court and Her Honour, Magistrate Popovic noted in respect of your supervised bail progress that there was positive compliance.
20 You went well up until 30 January 2016. However, you were then remanded in custody in relation to allegations of domestic violence that concerned both your mother and a girlfriend, and you were then remanded. Alternatively, you have been held at the Melbourne Assessment Prison and Melbourne Custody Centre and that has been very difficult for you particularly given the harsh conditions that pertain to all prisoners in those centres as a consequence of the July 2015 riots.
21 There are a number of matters that are yet to be dealt with in the Magistrates’ Court on 23 February 2016. Those matters concern criminal damage, the assault charges that I have referred to and aggravated burglary and burglary charges.
22 The offending the subject of the Indictment occurred in the context of you having problems with the breakdown of your relationship with your girlfriend, your heavy drug addiction and heavy drinking and mixing with negative peers.
23 I accept that this incident was a spur of the moment thing but it is an aggravating feature that you were armed with the sharp object. You used it in the course of the robbery and also your offending was committed whilst you were on bail and in breach of your probation order and whilst in company.
24 I have had regard to your rehabilitation prospects. Given your current attitude and responses to the supervised bail, your positive experiences with YSAS and, in particular, your excellent relationships with, Walter Dowie and Ms Wan, I consider that you have made remarkable progress. I note that Mr Dowie has written a report for me plus he gave evidence at your hearing.
25 I think it is important that you know what he says. He says:
26 "YSAS believes that behavioural change seldom occurs solely as a result of a person's psychological will but that in most cases the impetus for change must be coupled with conditioning factors in the social environment, ongoing supportive relationships such as those Marley continues to develop with YSAS and other support services are examples of such factors".
27 Like I was saying before, Walter Dowie did indicate, to the Court, quite strongly, his commitment to continue his relationship with you. Even if it means, he has got to do it by phone contact or travel to Warrnambool. So that is all good and that will mean that you will have continued support for your goal of remaining drug free and it will give you the opportunity to break the cycle that you were in.
28 I have also noted Ms Wan's report stating that you were positive during the supervised bail periods and that was significant compared to previous responses whilst you were on the Children's Court Orders.
29 I have had regard to all the other material. There was a letter from your Aunt, Lyn Morgan, who spoke movingly about the difficulties you and your other siblings had following the traumatic removal of your family from your parents, who were unable to properly care for you because of their own substance use problems and the various homes that you had to go into. She also highlighted the fact that there were many moves between Orbost and Melbourne and back again during your life. There has been a lot of transience in your life.
30 Overall, I have had regard to your significant positive progress during the supervised bail period, the fact that you have detoxed from drugs, which is of real significance in this situation where, from a very tender age, it is said that you were using drugs including, amphetamines and cannabis, that ranged from binge style to daily usage.
31 You have had to cope with the experience of being in adult prison, and that has been difficult but it has given you the opportunity to reflect, as I said before, and you are now more accepting of the need to continue your progress. I consider that is better done in the community rather than in gaol.
32 In mitigation, I have taken into account:
· your early plea of guilty;
· your difficult current personal circumstances whilst being held in adult custody on remand;
· your genuine remorse;
· your significant background of family difficulties, your drug addiction and lack of appropriate role models whilst growing up and disrupted education;
· your active participation in the YSAS detoxification program;
· your positive participation in all the rehabilitative programs through Youth Justice;
· your strong support from various family members;
· your genuine participation in the Koori Division and the sentencing conversation;
· your expressed acceptance of responsibility for your actions;
· your willingness to express sympathy to the victim;
· your desire to move forward in a more pro-social way.
33 Yours is an example where you have made an impressive and significant change to your life and I accept that you have excellent prospects for rehabilitation. But that is all centred on you remaining drug-free and also pursuing your goals in both education and employment.
34 Given your significant steps towards your ultimate rehabilitation, I will be imposing a Community Correction Order as we have already discussed. Your ultimate rehabilitation is a very important factor for you in your life but also it offers the community the best protection and ensures that the risk of you re-offending is reduced.
35 It is nonetheless still a very serious example of this sort of offence. You did act with Mr Miller and you had on your person the sharp object that you used and that instilled real fear in the store attendant so general and specific deterrence are relevant. The fact you breached your bail and probation order conditions is also aggravating. Specific deterrence has a role to play.
36 Just as in the case of R v Steelie Morgan,[1] this is a difficult sentencing exercise. What makes this case unusual, however, is the extraordinary efforts made by you, a young aboriginal man, who has had experienced significant disadvantage over your formative years. I consider each of the principles are articulated in R v Mills[2] has been enlivened. I therefore, in the circumstances, consider that this is a case where I can temper justice with mercy.
[1][2010] VSCA 15
[2](1998) 4 VR 235
37 I am also mindful of what was said by the Court of Appeal in the guideline sentencing judgment of Boulton v R,[3] where the Court of Appeal spoke about the negative impacts upon imprisonment and youth. Further, it was accepted that a Community Correction Order is intrinsically punitive and capable of deterring others and providing for specific deterrence. The court, at paragraph [131], confirmed that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a median term of imprisonment. It is my view that this is such a case. I am satisfied, in all the circumstances, the order that I am proposing is capable of satisfying all the sentencing principles whilst offering you the best prospects of rehabilitation.
[3][2014] VSCA 342
38 As was said in another case of R v Tiburcy,[4] a sentencing court must look to the future as well as to the past. There is a real benefit to the community at large as well as to individuals themselves and their immediate families if future criminal activity can be avoided.
[4][2007] VSCA 124
39 All in all, notwithstanding the seriousness of your offending, the combination of very powerful mitigating factors that I have highlighted means that a Community Correction Order will be imposed. I note that that was sought by Mr Kats, your counsel and Mr Roper, on behalf of the Crown, this morning indicated that a Community Corrections Order was within the sentencing range available to the court.
40 On the one charge of armed robbery, the formal order will be that you will be convicted and placed on a Community Correction Order for a period of one year with the special conditions that you undergo community work of 100 hours, supervision, treatment and assessment for drugs and testing and offender programs and that you will be subject to Judicial Monitoring. The first appointment will be 15 August 2016 at 10.00 am. That will be conducted from Warrnambool County Court. Details of that address will be provided to you shortly. They are the terms of the Community Correction Order.
41 I have already explained to you how a Community Correction Order works. You understand the effect and conditions of the order and you have consented to it being made. I have also explained to you the consequences of a breach of such order.
42 I make a declaration pursuant to s.6AAA, but for your plea of guilty I would have imposed a sentence of 12 months’ imprisonment to be followed by a Community Correction Order on the same terms and conditions.
43 I make the Compensation Order sought and note it is not opposed and I will grant a stay of six months for payment.
44 I think that covers everything, does it not, gentlemen?
45 MR ROPER: Except perhaps that date of - - -
46 HER HONOUR: Sorry?
47 MR ROPER: The date of - just perhaps formally the date of commencement of the Order.
48 HER HONOUR: Yes. The date of commencement of the Order. It is in this formal printed Order which says that the Order will last for one year and commences on 23 February 2016 and ends 22 February 2016.
49 MR ROPER: 2017.
50 HER HONOUR: 2017, sorry yes. That is what it reads. I just read out the wrong year - so I will get Mr Kats to get you to sign that with my Associate. Have we got the address of the Warrnambool courthouse too? Can we do that?
51 MR KATS: It's 218 Koroit Street, Warrnambool.
52 HER HONOUR: What is it?
53 MR KATS: The courthouse is 218.
54 HER HONOUR: 218?
55 MR KATS: Yes.
56 VOICE (from body of court): I think that's correct. It's the same address is it?
57 HER HONOUR: Yes the same. They're co-located.
58 MR KATS: From memory, yes, 218 Koroit Street in Warrnambool.
59 HER HONOUR: All right thanks for that, Mr Kats. All right well look, all the best. I will speak with you at the review, all right?
60 OFFENDER: Yep.
61 HER HONOUR: Hopefully things will go well for you. As I have emphasised to you before, Marley, it's a matter for you. If there's any difficulties please come and talk to somebody.
62 OFFENDER: Yep.
63 HER HONOUR: So that we can see what we can do to manage that, all right? You've got a lot on your shoulders, a lot of responsibility but you have shown, while you were on that Koori Intensive Support Bail Program you do well. So hopefully you will continue to do well, all right?
64 OFFENDER: Yep.
65 HER HONOUR: All right, thanks. He can be taken back into custody now. Thank you, Mr Dowie, for being so accommodating. It's really helpful. I thank my Koori Court Officer again. Thank you, gentlemen, we can adjourn.
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