Director of Public Prosecutions v Yates

[2014] VCC 1143

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

AT MILDURA
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEVAN YATES

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	17 July 2014
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2014] VCC 1143

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty
For the Offender	Mr G Davis

HER HONOUR: 

1Now, Mr Yates, I will be directing my remarks to you, but you do not have to stand up just yet.  Bevan Yates you have pleaded guilty before me to two charges of armed robbery.  The maximum penalty for that offence of armed robbery is 25 years.

2The circumstances of the offending were set out in the prosecution opening and, briefly, both those offences occurred on 5 January 2013, which is approximately 18 months' ago.  At that time you were with three other associates who became your co-offenders in these crimes.  You had each been to your grandmother's funeral in Robinvale and I am told that you had, together with them, consumed a great deal of alcohol, and you had also ingested drugs.

3On the way home from the funeral you visited the property at Wemen, where the offences occurred, and where you had been earlier that day.  It was the home of your victims, where they lived, each of them together with a friend.  I am sorry, the first victim with her husband and the couple also with their friend who is your second victim.  Each of those persons was home when you and your associate stopped your car outside and entered the house.

4Your group initially asked for assistance with your car, which was overheating, and then asked for cigarettes and came in to the house.  The occupants of the house obliged you by giving you both water for the car and cigarettes, however once you were in the house you and your co-offenders demanded money from your victims.

5It was put to me on the plea, and I accept, that you did not actually speak to the victims in those terms.  You do not appear to have spoken at all, during the event.  However, you stood over each of the victims, having taken a fire extinguisher from the house, and with that fire extinguisher raised over your head in a threatening way.  One of your co-offenders also took up wire cutters from the house which he also used to threaten the victims in the same way that you used the fire extinguisher.

6Two of your other co-offenders searched the house while you stood over both of the victims.  You all then left the house, together with the items which you had taken, which were approximately $100 in cash, mobile telephones, a television, and a laptop computer.

7I received in to evidence a joint victim impact statement prepared by both of your victims and also by the husband of one of your victims.  That victim impact statement sets out very clearly the effect that your offending has had on your victims.  The occupants of the house are now too scared to stay home.  They have attempted to put some security in place but they are constantly concerned about the prospect of another attack upon them in their house.  They are scared when there is a knock at the door.  Their lifestyle and their relationships have been affected because of what they describe as this frequent fear, frustration and distress.

8This fear has spilled over in to their social lives as they are now concerned about making new friendships and seeing strange people.  In particular, Kuldeep stays at home most of the time and when she can follows other occupants of the house around.  The other occupants, when they are at work, are constantly concerned about her and about whether anything has happened to her during their working day.

9The victims have also suffered financial loss because of your crimes.  First of all they were too distressed for some time to go to work.  Secondly, they have needed to have time off for these proceedings.  Further, of course, they have lost the items which you stole.

10So, Mr Yates, what you have committed is a very serious offence.  The circumstances under which you committed both those crimes also add to the serious nature of your offending.  The armed robberies were committed on a soft target.  They were committed upon people living in an isolated area, with no means of protecting themselves against you.  They were defenceless against you and your companions.  You committed the offences in the company of three other persons and I accept that your actions in doing so must have been extremely traumatic to your victims.

11There are, however, some mitigating features to the offence itself.  Firstly, although none of your other co-offenders have yet been dealt with, the defence counsel submission was that you acted as a follower rather than a leader or initiator of this activity.  One of the significant factors put forward in this respect was that you were described by the victims as just standing there with the fire extinguisher and not saying anything, or giving any orders, during the course of the incident.  You had, as I have said, been drinking and taking drugs over the course of the afternoon, and your counsel relied on the evidence of the victims themselves that other offenders had to call you to come to the car at the end of the incident, as evidence of the fact that you were extremely drunk and that your ability to understand what was happening was thereby affected.

12I agree with these submissions, which were not gainsaid by the prosecutor.  I sentence you on the basis that you are not the principle perpetrator of these offences and that you acted as a follower, doing what you were told by your companions.  The fact that you and your co-offender used items found at the house to threaten your victims with also indicates that the incident was a spur of the moment incident rather than something that had been planned.

13Also in this respect, although it was not mentioned on the plea, I take it as given that there was no attempt to hide your identity, there is no suggestion of that in the depositions.  In fact your identity may well have been easily obtained from the fact that you and your companions had earlier been at the house and had spoken to the occupants of the house about some mutual acquaintances.

14Your counsel tells me that you have no memory of this incident at all.  It was on that basis that you pleaded not guilty to the offences.  It was only when you heard from a witness in this trial, who identified you as being there on that occasion, that you changed your plea to guilty.  I accept that that was the case.  I note that you have also pleaded guilty to a different indictment which was originally charged against you.  I therefore take your plea of guilty as being to some extent equivalent to a plea at the earliest possible occasion.

15Mr Yates, you are presently aged 26.  Up until June 2012 your criminal offending had been relatively modest.  You come from a law abiding aboriginal family and your parents and relatives are working people of good character.  Neither of your parents drink and overall you appear to have been provided with a stable life with them for at least some part of your childhood.

16I will come back to some of the difficulties that you have faced in your childhood later.  At present, however, I note that the most significant criminal offending occurred in June 2012, when you committed an act of rape upon a young relative of one of your friends.  As a result of that offence you were sentenced to a period of five years' gaol with a non-parole period of two years, six months.  You are presently serving that sentence at Ararat Prison and I was told that the non-parole period expires on 5 September 2015.

17I was told that there may be difficulties with you being able to access parole at that time because of the lack of capacity for you to undertake a suitable sex offenders program, which will most likely be a condition of your parole, but subject to that problem being solved, had you not committed these offences and been sentenced today you would have expected to be able to be paroled in early September 2015.

18I now deal with one of the major difficulties that you have had in your past.  Those matters are set out in the sentencing remarks of Her Honour Judge Wilmoth when she sentenced you for the offence of rape and also in two reports of Warren Symonds, which were exhibited in the plea hearing before her and have also been provided to me.  In brief, they are these, it is not clear whether your biological father and mother were married, but in any event they separated when you were very small.  You regard your stepfather as being your father and as I have said you are very close to your family and several other family members, including your siblings.

19However, you have always suffered from an intellectual disability.  This disability was unfortunately not diagnosed until you were a teenager.  The lack of this diagnosis has meant that you have spent all of your time at school, unable to access any proper education.  You still cannot read or write and you have limited verbal capacity.  The result of the lack of education was that you left school early and you have never obtained any employment skills.  I am told that you have never had a job and you have never had any formal assistance to attempt to obtain a job.

20That is the background against which you turned to drugs, inhaling glue and drinking alcohol as well, as a release from this difficult situation in which you found yourself.  Judge Wilmoth spoke of your life as being an aimless one, without focus, structure, or direction.  I agree that this is the appropriate way to describe the situation in which you found yourself prior to your imprisonment for this offence.

21However, it is some credit to you that you have a modest criminal history, given those background circumstances.  There is a minor conviction in 2007 for criminal damage and assault, combined with drunkenness and a breach of a family violence order and assault in 2011.  There is no real history of significantly violent offences such as you have committed on this occasion.

22The breach of the family violence order, I am told, was in respect of a lady with whom you had a relationship and who has born you two children.  Those children are both girls and they are aged five years and four years.  You have been unable to have much contact with them in recent times and certainly you have been unable to have much contact with them since you have been in prison.

23Your intellectual disability is clearly established on the material before me.  I agree with your counsel, because of that intellectual disability you are not a suitable vehicle for the principle of general deterrence.  I agree also that the principle of specific deterrence is fraught.  This is because you do not seem to have much concept of attaching consequences to actions.  The report of Mr Symonds is evidence of this.  Indeed your counsel instructs me that you do not have a sufficient understanding now, of time and place, to be more than vaguely aware as to how much time you are presently to serve in prison as a result of the offence to which you were sentenced by Judge Wilmoth, and as to what the prospects will be for further imprisonment as a result of this sentence today.

24Further, although there has been no expression of remorse from you, I accept the opinion of Mr Symonds that your lack of ability to evaluate your own actions and determine their likely outcomes, and their impacts on your victims, is limited by reason of your intellectual disability, and that that disability also limits your ability to express any high level of remorse, as you just simply do not have the language skills to be able to do so.

25There is, however, some positive evidence about the prospect of your rehabilitation.  First, as I have already referred, you appear to have a very high level of family support.  Once you leave prison you will have a good law abiding family with which to live.  Secondly, although you expressed your use of drugs and alcohol in significant terms to Mr Symonds, your parents characterise you as being a binge drinking but otherwise than when on a binge, only a modest drinker.  If you are able to take control of the binge drinking occasions then you will have fairly good prospects of rehabilitation.  You are described otherwise as being a quiet and unassuming person.

26

I described you at the commencement of these sentencing reasons as taking the role of a follower rather than a leader in the commission of these offences.  This is borne out by your intellectual disability and also the description of you by your parents as being easily led.  It is also borne out in the report of

Mr Symonds, which gives you a verbal IQ score of 65 and your non-verbal IQ score of 55.  He describes the behaviours that you have had in your past as consistent with someone who has had marked intellectual difficulties and a tendency to acquiesce when you are in a situation which you find threatening or frightening.

27Your counsel submitted to me, and I accept, that several of the Verdins principles have application to your case.  I accept that there is evidence that there is reduced moral culpability because of your intellectual disability.  You appear to have stood and done the things you thought were required of you, rather than having initiated the criminal activity.  Further, I accept the prison will be difficult for you because of your aboriginality.  It is indeed one of the reasons why you are reluctant to take on any courses in other prisons to better yourself, because those courses at other prisons would mean that you would need to move to an unfamiliar location.

28I also accept that because of your family situation you have had very few family visits and this has caused you a great deal of distress.  I further accept that by reason of your personality and your intellectual deficits you find it difficult to look after yourself or think clearly enough to be able to assert your rights and that this will impact to your disadvantage on obtaining supports whilst in prison.

29I also accept that you are not likely, by reason of all those matters, to be able to gain a significant amount of benefit from your period of incarceration. Your counsel has submitted to me, and I agree, that what is required is a lengthy period of parole so that the parole authorities will be able to assist you in accessing the supports needed, particularly through the Department of Human Services. Those supports will be available to you as you are an eligible offender under the Disability Act 2006. It is vital, Mr Yates, that those supports are put in place whilst you are still a young man of 26, in order to assist you to attempt to turn your life around.

30Mr Yates, you are presently, as I have said, in prison on another sentence, the sentence of Her Honour Judge Wilmoth, and I need to look at that sentence, when combined with this, and make a determination about whether or not part of my sentence which I will impose today should be cumulative or concurrent.  In making that assessment I need to look at the principle of totality, that is to make sure that the combined sentence is not a sentence that is crushing, and I also need in that respect to set a new non-parole period, which will cover both the sentence that will be imposed upon you today and the sentence of Her Honour Judge Wilmoth.  I have taken some time to make orders which, in my view, accommodate those matters, whilst also accommodating all the matters which I have expressed so far in these sentencing remarks.  Mr Yates, if you could stand up please?

31Mr Yates, on the first charge of committing an armed robbery on Kahdi Kor, you are convicted and sentenced to be imprisoned for three years.

32On the second charge of committing an armed robbery on Santosh Kahmeer, you are convicted and sentenced to be imprisoned for three years.

33Given that the offending in both those charges occurred in identical circumstances, at exactly the same time, I propose that each of those sentences be served concurrently with each other.  Mr Yates, that means that the total sentence imposed in respect of these offences is three years' imprisonment.

34I now look at the question of cumulation with the existing sentence that you are presently serving and I will direct that 12 months of this sentence be served cumulatively on your present sentence.  So 12 months of the sentence to be imposed today will be cumulatively on your present sentence and your balance will be concurrent.

35The existing non-parole period was fixed to come in to effect on 5 September 2015.  I need to make an order for a new non-parole period.  I order a new non-parole period of two years, in respect of the sentence that I am to impose upon you today, and I will direct that the new non-parole period is to commence on 2 January 2017.

36Now, Mr Yates, as far as I can work this out, what that means is that you will serve an extra one year on your sentence, that you are presently undertaking, and your non parole period will be two years, but rather than calculating that from 5 September 2015 it will be calculated from 2 January 2017, which, if my maths are right, will give you a non-parole period of two years.

37Now, s.6AAA of the Sentencing Act requires me to state the sentence and non-parole period I would have imposed had you not pleaded guilty, and I say pursuant to that act that I would have convicted you and sentenced you to a total of five years' imprisonment with a period of three years' imprisonment before being eligible for parole.  I direct that that be noted in the records of the court.  Are there any other matters?

38MR DAVIS:  No Your Honour.

39MR O'DOHERTY:  No, as the court pleases.

40HER HONOUR:  Thank you, if the prisoner could be removed, please.  Thank you.

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