Director of Public Prosecutions v Young

[2012] VCC 1543

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01117

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND JACK YOUNG (aka RAYMOND GREGORY YOUNG)

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2012
DATE OF SENTENCE:	24 August 2012
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2012] VCC 1543

REASONS FOR SENTENCE

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Catchwords: CRIMINAL LAW – Plea of guilty to aggravated burglary, burglary, theft and handling stolen goods - 45‑year-old Aboriginal offender with serious criminal history for like offending to support drug addiction – deprived and dysfunctional upbringing and lifestyle – importance of general and specific deterrence – TES of 3½ years imprisonment with minimum of 2 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms R Harper (plea) Ms Goding (sentence)	Office of Public Prosecutions
For the Offender	Ms M Dixon	Victoria Legal Aid

HIS HONOUR:

1       Raymond Jack Young, you have pleaded guilty to aggravated burglary (charge 1), the maximum penalty being 25 years’ imprisonment; to theft (charges 2 and 4) and burglary (charge 3) for each the maximum penalty is 10 years’ imprisonment; and to two offences of handling stolen goods (charges 5 and 6) for which the maximum penalty is 15 years’ imprisonment.

Circumstances of offending

2       The circumstances of your offending have been set out in an agreed prosecution opening which was read out in court.  A summary will suffice.  At about 6.30 am on 4 March 2012, you were under the influence of alcohol and drugs and armed with a knife when you forced open a window of a unit in Broadmeadows (charge 1).  The male occupant was awoken by the noise and found you rifling through a cupboard.  He recognised you and told you to get out, assuring you that he would not call the police.  However, you produced the knife, which was 20 centimetres in length, and pointed it at him, demanding that he give you $10,000.  This conduct was agreed as demonstrating your intent to steal.  I am not to sentence you for any attempted robbery.  The victim ran off to a neighbouring unit to call police, and you stole his camera (charge 2) and left the property.

3       Thirty-five minutes later you went to a nearby house occupied by an 80‑year-old lady.  You entered the premises in an unspecified way (charge 3).  The victim was woken by a noise in the back room, and saw a light flashing.  Next moment you were standing in the doorway of her bedroom about three or four feet from her bed, holding a torch.  She yelled at you to get out, and you left by the front door.  However, before leaving, you stole the lady’s handbag, which contained personal papers and a bank card (charge 4).

4       As you had been identified at the first incident, police went to your home in Broadmeadows at about 11.15 am that day.  You were asleep.  The lady’s personal cards and papers were found in your shorts, and the camera.  You were in possession of a number of computer and electronic items stolen from two premises in Broadmeadows two days previously (charges 5 and 6).

5       When you were arrested you were acting irrationally and deemed to be unfit for an interview.  You were charged and placed in custody, where you have remained to the present.  There is pre-sentence detention of 173 days.

6       The victims were offered the opportunity to make victim impact statements but declined to do so.  Nevertheless, both of them must have been seriously traumatised by finding you in their homes in the circumstances I have described.  It is every householder’s nightmare that the sanctity and privacy of their home might be violated in this way.  As the Court of Appeal recently observed, such offending would constitute “a massive insult to one’s sense of self”.[1]  You should feel a great deal of shame and disgrace for having frightened those two people in the way that you did.

[1]Bonacci v R; Vasile v R [2012] VSCA 170, [1], per Neave, Mandie and Harper JJA.

7       In June last you made a written offer to plead guilty and did that at your committal on 2 July last.

Background and personal circumstances

8       I will turn to your background and personal circumstances.  These have been set out in two psychological reports from Carla Lechner dated 10 and 20 August 2012 and in a helpful and comprehensive written submission provided by your counsel.

9       You are a 45–year-old Aboriginal man who has led a dysfunctional and deprived life, which has been seriously compromised by entrenched drug addition and criminal offending.  You are the fifth of seven children, and grew up with your parents as the first Aboriginal family in Broadmeadows.  Your mother was a homemaker, and your father worked sporadically as a driver before suffering a heart attack when you were ten.

10      Regrettably, your father was a violent alcoholic and gambler, and you were beaten regularly as a child with an electrical cord, and witnessed your mother and brothers subjected to violence.  Your older brother, who gave evidence on the plea, described in moving terms how your father would make the children sit on the end of the bed in a darkened room, and hit them with the cord if they did not provide the correct answer to some drunken inane question.  Your father spent most of the money on alcohol and gambling, and there was often not enough food in the house.  You learned to beg and steal at a young age to bring food home.  At school you and your siblings were often subjected to racial vilification because of your aboriginality.  You responded with violence.

11      When you were ten it was all too much for your mother, who ran away with your younger sisters, leaving you and your brothers alone with your father.  You continued to commit dishonesty offences, and ended up in youth justice centres.  Whilst in Turana, you were raped persistently by a visiting priest.  Apparently this happened to a number of Aboriginal boys who were there.  No report was made, and for most of your life you have kept this a secret.

12      You were a talented sportsman, and, having left school, you were drafted to the Sydney Swans Football Club.  Unfortunately your potential was not realised.  In part, this was because around this time your older brother hanged himself in the family home.  Not surprisingly, this terrible event had a profound effect upon you, especially as you were isolated from your family and friends from Victoria.  You commenced to drink heavily.

13      After 2½ years in Sydney you travelled extensively through Australia, performing various itinerant jobs.  In 2000 you worked at an Aboriginal primary school as a teacher’s aide, and in recent years have supported yourself by making Aboriginal artefacts, most of which you give away.  You undertook volunteer work at the Dallas Community House, assisting in setting up a men’s program and doing other odd jobs; and you worked at Kangan TAFE as a mentor in the indigenous education unit for three months in 2011.  A reference from the manager there spoke of your boundless energy and expertise in imparting your knowledge of indigenous culture.  You have a deep personal and family sense of Aboriginal pride.

14      You lost two nephews in the late 1990s, one of whom also committed suicide.  Your father died in 2007 from a heart attack, and, sadly, your mother died in April this year.  She had been ill for 12 months, and you struggled mightily being unable to be with her and coping with your grief whilst incarcerated.  Fortunately, you were allowed to attend her funeral.

15      You first used cannabis when you were thirteen.  You grew up in a house surrounded by family members who drank heavily and took drugs.  You were injecting amphetamines in your early teens, and, combined with alcohol, this was a dominant addiction for you throughout your twenties and early thirties.  In 2009 you became addicted to heroin.

16      You married in 1989, from which relationship there are two children, a son, eighteen, and daughter, twenty-one.  The marriage broke down after five years when your wife took the children to Queensland without telling you.  You were devastated by this, and twice attempted to take your own life.  You did not see your wife or children for seven years, until your father’s funeral, but then lost all contact again, and have not seen them since.  You are hopeful that your children will one day re‑establish contact with you.

17      For the past three years you have been in a close relationship with a lady who has a number of health problems.  You live with her and her eleven year old son.  She supported you in court, and has regularly visited you in custody.

18      At the time of offending you were on a Suboxone program to treat your heroin addiction.  You voluntarily commenced this program in 2009, which was being managed by the Victorian Aboriginal Health Service.  A report from a drug and alcohol worker there spoke of your positive efforts to overcome this problem. 

19      Regrettably, you have an appalling criminal record.  Over 27 years from 1984, when you were seventeen, until 2011, when you were forty-four, you have been convicted of no less than 96 offences from twenty-six court appearances in Victoria, Queensland, Tasmania, South Australia, and New South Wales.  Most were for dishonesty, including for burglary, theft and handling, but also for possessing and using drugs and alcohol, and for numerous offences of violence.  On three occasions you were sentenced to youth detention, and on six to terms of imprisonment, although all were wholly suspended.

20      Of particular significance, on 10 June 2011 you were convicted in the Broadmeadows Magistrates’ Court of burglary, theft, and other offences, for which you were sentenced to an aggregate term of five months’ imprisonment wholly suspended for nine months, until 9 March 2012.  Accordingly, you have offended whilst on that suspended sentence, which is an aggravating feature.

21      Since you have been in custody you have spent most of your time at MAP working as an “Essential Worker”, mentoring others.  Since you were moved to MRC nine weeks ago you have worked full-time in the laundry with responsibility for managing others.  You have not been on any medication.  You have had one urine screen last June which was negative for illicit substances, and apparently a similar result from late last year.

Mitigating circumstances

22      There are a number of mitigating circumstances.  As I have explained, you are the product of a dysfunctional and disturbing family background.  You grew up in an atmosphere of violence and fear, and had no appropriate male role model.  You became a fighter at an early age in response to racial vilification, and were effectively forced out onto the streets to embrace a life of crime.  I accept that you were sexually abused in the most horrible of circumstances, and that you have carried the trauma of that experience all of your life.  You should not think for a moment that that was your fault in any way.  In circumstances where family meant everything to you, you lost your brother to suicide.  You became addicted to alcohol and drugs, and simply could not cope with life in the normal order of events.

23      You are a proud Aboriginal man and have tried to impart the best traditions of your culture and race to others.  As your brother said, you are a different person off drugs when you display goodness and concern for others.  You are a gifted and intelligent person, but lack confidence and self esteem and would be assisted by having a mentor and structure in your life.

24      You have developed a positive relationship with your partner, you wish to re-establish meaningful contact with your children, you have the support of family and counsellors in court and you will have continuing family and other personal support whilst you are in custody and upon your release.

25      You pleaded guilty at the earliest time, thereby saving time, cost and inconvenience to the prosecution and the community.  You have served the interests of justice which warrants a significant discount in penalty. I am also satisfied that your pleas are associated with deep regret and remorse.

26      But you know better than anyone else here today, how difficult it is to overcome entrenched addictions, even when you were on a drug program and had the support of your drug and alcohol workers.  It is to your credit that you worked positively at the indigenous education centre, and since your incarceration you have worked in responsible positions, apparently remained drug-free, and demonstrated important rehabilitative tendencies.  Of course, the real test will come upon your ultimate release back into the community.  You will need intensive parole support.

27      Your counsel submitted that all six limbs of Verdins [2] are engaged.  She relied on the psychologist’s opinion that because of your psychological problems and post-traumatic stress disorder as a result of the abuse you experienced at the hands of your father and the priest, and depression and anxiety, all leading to significant substance abuse as a means of “self-medicating” against your internal distress, you were led in turn to offending.  Furthermore, she states that at the time of these offences you were struggling to come to terms with the serious illness and pending death of your mother, which exacerbated unpleasant memories you had associated with death, particularly that of your brother who suicided, and family life in general relating to emotional abuse and abandonment.  In these circumstances, it was put; you fell back into old coping patterns of using drugs as a short-term fix for internal distress.

[2]R v Verdins (2007) 16 VR 269.

28      I agree with the psychologist that your offending occurred in this context, and that this is an important factor to take into account in your favour.  However, I do not accept that there was a causal connection between your psychological disturbance and your offending in the Verdins sense.  Certainly, taking drugs and alcohol, when you knew the effect of both upon you from long experience, could not excuse or mitigate your offending.  If you did demonstrate disinhibited behaviour and poor judgment due to substance intoxication, as is highly likely, that does not in these circumstances entitle you to an excuse for what you did or because of that to treat you as having reduced moral culpability or to an amelioration of the important principles of general and specific deterrence.  I accept the prosecution submission that it was your drug addiction, not your psychological condition, which was productive of your offending.  If I am wrong about that, I consider that any moderation of sentence in the way contended is overwhelmed and outweighed by the importance of protecting the community from your offending.  This is clearly the case having regard to the length and breadth of your criminal record throughout Australia, particularly for the same type of offending, although I note you have not previously been convicted of aggravated burglary, and because you were on a program when you offended.

29      I do not accept that your apparent relapse into alcohol and drug abuse was in any way an inadvertent aggravation or exacerbation of your general psychological problems.  Hence, it would not appear that the decision of Vardouniotis[3] has much application to the present circumstances, as submitted by your counsel in her further written submission.

[3]R v Vardouniotis [2007] VSCA 62.

30      I note the psychologist stated that you are currently exhibiting symptoms of depression at a moderate level, and that whilst this is partly reactive to your current predicament; your history indicates a longstanding mood disturbance that was previously treated with anti-depressant medication.  However, she also noted that you have rejected the present idea of anti-depressant medication.  In her supplementary report she said that you were finding custody to be most demoralising, especially as it brings back memories of your teenage abuse in custody.  Although you have coped generally well in prison, I do accept that your memories of past abuse alone would make your time in custody more onerous than for a person who has not been similarly abused.  I reject the prosecution submission to the contrary.

31      Having said all that, I am moved by the sadness of your past difficulties and the plight that you have experienced, particularly the negative impact you have suffered because of your Aboriginality. Although you are to be treated equally at law, for that reason I am satisfied there should be some reduction in your moral culpability and an appropriate moderation of the principles of general and specific deterrence and the need for strong denunciation.[4]

[4]DPP v Terrick (2009) 24 VR 457, [50].

32      In all the circumstances, I cannot be confident that you have good prospects of rehabilitation.  But it is pleasing that you seem to have developed some maturation and insight since your offending, again, as I say, the true test will come when you are required to cope back in the community.

Other sentencing considerations

33      There are other important sentencing considerations.  You have committed serious offences, particularly aggravated burglary.  I must have regard to the maximum penalties provided.  You conducted two home invasions at night, one whilst you were armed with a fearsome weapon which you pointed at the victim.  The Court of Appeal has emphasised the need for the imposition of substantial sentences of imprisonment for such an offence.  And your offending was aggravated as you were on a suspended sentence at the time.

34      No explanation for your offending was provided by you to police.  You claim to have no memory of the burglaries and no explanation was given for you handling stolen property.  You did not give evidence on the plea, but your counsel explained that in the lead-up to the offending your mother had suffered devastating strokes which left her paralysed and reliant on 24‑hour care.  It was said that you went to a party and drank heavily and took drugs.  This was in spite of the Suboxone program you were on. It was submitted that the burglaries were without any specific motive, but that is clearly contradicted by your demand for $10,000 and your theft of items from both places.  You clearly knew what you were doing.  Nor do I accept the submission that you were not violent, as when the first man told you to go, you pointed the knife at him. It is impossible to say whether, as submitted, the offending was unplanned, as no explanation for it has been directly provided by you, and it is not without significance that you lived nearby to both premises.

35      General deterrence and specific deterrence remain important applicable principles.  So too, protection of the public.  I must also bear in mind the principle of totality and the need to avoid a crushing sentence upon you.

36      The prosecution submitted that appropriate range was a head sentence of 3–4 years’ imprisonment with a minimum of 18 months to 2½ years’ imprisonment.  This range takes account of the mitigating factors, including that the aggravated burglary was at the lower end of the scale, and the property stolen was of minimal value. Your counsel accepted that an immediate custodial sentence was appropriate in the circumstances, but no particular reply was made to the prosecution range.

37      I accept that there should be a reasonable degree of concurrency as between the home invasion offences, as they constitute one course of criminal conduct, but a measure of cumulation is called for to reflect the separate invasions.

38      On behalf of the community, I denounce your offending.

Sentence

39      Mr Young, please stand up.  You are convicted and sentenced as follows. On charge 1, aggravated burglary, to 2½ years’ imprisonment.  On charge 2, theft, to 3 months’ imprisonment.  On charge 3, burglary, to 12 months’ imprisonment.  On charge 4, theft, to 3 months’ imprisonment.  On each of charges 5 and 6, handling, to 12 months’ imprisonment.

40      The sentence imposed on charge 1 is the base sentence.  I order that 6 months of the sentence imposed on each of charges 3 and 5 shall be served cumulatively upon charge 1 and upon each other.  The total effective sentence is 3½ years’ imprisonment. I fix a period of 2 years’ imprisonment as the period to be served before which you shall not be eligible for release on parole.

41      I declare that the period of 173 days’ pre-sentence detention be reckoned as already served under that sentence, and direct that such declaration be entered in the records of the Court.

42      But for your pleas of guilty I would have imposed a sentence of 5½ years’ imprisonment with a minimum of 3½ years.

43      Mr Young, you need to go now with the prison officers, thank you.  Please remove the offender.  [Offender removed]