Director of Public Prosecutions v Young

[2019] VCC 1153

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02452

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY YOUNG

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	2 May 2019
DATE OF SENTENCE:	29 July 2019
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2019] VCC 1153

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 L. Harrison	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Corey Young, you have pleaded guilty to three charges of theft, one charge of armed robbery and two charges of criminal damage.  You are 20 years of age and were only 19 years of age at the time of the offending.  You obviously were and still are a young offender.

2You pleaded guilty at a reasonably early opportunity and must get the benefit of that.  I accept that with your limited capacity, you at least now express appropriate remorse for what took place and obviously you must get the utilitarian benefit of that plea of guilty.

3You do have a significant criminal history for one so young and you have now been in custody for 459 days.  Essentially the submissions put on your behalf were that a custodial sentence to be followed by a community corrections order would be within range and indeed would be for everybody's benefit in your particular set of circumstances.

4I think that is correct and I will briefly outline the reasons why.  The offending involved you stealing a car and then stealing petrol, involved you damaging that car to the point where it was a write off as I understand it, but during the course of the time of you having that car an armed robbery took place.

5You and your co-accused, a Mr Austin, were in Bairnsdale and the pair of you were obviously driving around in a stolen car and somewhat out of control.  The offending can be pointed out that, as I said, you have an intellectual disability.

6At approximately 2.30 am on 23 April of last year you stole a motor vehicle.  You and your co-accused were in that vehicle and two sisters were sitting in the back seat at the time.  The two of you observed a Mr Kleehammer and a
Mr Patrick Huggins walking along the street.

7You did a U turn into a driveway just behind them, pointed at them and laughed.  The vehicle was driven behind them and you stopped.  You said to Clehammer, 'Do you want to punch on?' to which he said, 'No, I don't.  I don't know you'.

8One of you, either you or Mr Austin said, 'Don't even fucking run'.  The two of you got out of the car.  You were wearing knuckle dusters on your fist and held them a few centimetres away from the side of Mr Clehammer and told him to empty his pockets.

9You took a nearly empty packet of cigarettes, a Samsung Galaxy phone and a pair of earphones, they were snatched from him.  Your co-accused walked towards Mr Patrick Huggins and said, 'Give me that fucking gold chain'.  He said, 'It's fake.  Why do you want it?'  He took it in any event.  That chain was later found as I recollect in your possession.

10You also as I said in that set of circumstances are to be sentenced for the theft of vehicles and the damage that was done to them.  I am aware of the victim impact statements.  They were two innocent young men who were essentially terrified by the pair of you in circumstances where you got virtually nothing from it.

11The offending has to be regarded as serious and calls for application of general and specific deterrence as well as denunciation and appropriate punishment.  In your situation though you do have an intellectual disability and you have a certificate as such.  Accordingly that brings into play the principles outlined in Muldrock and other matters and general and specific deterrence obviously have to be moderated to some degree.

12However, I then look to matters personal to you and you do have a 'mild in range intellectual disability' and I know that means nothing to the average person but it is obviously a serious disability on your part.  You do have some independence within the community but you do require additional support.

13You have little confidence in terms of maintaining yourself in a non-custodial environment but you reported to Corrections when I had you assessed for a justice plan that you were able to complete domestic tasks and you have indicated today again in Koori Court you have learned how to prepare simple meals.

14You have been on the disability support pension prior to your incarceration and it is unknown as to how you are going to travel in terms of budgeting and things like that upon your ultimate release.  You are able to use public transport.  You have got very limited literacy skills.  You cannot read a public transport timetable.  For example, you have to ask someone when the next bus was coming otherwise you just wait.

15You cannot use a mobile phone to record and again you have extreme difficulty in terms of keeping appointments.  It is not uncommon with people with your disability and it is always very much a difficulty for a sentencing judge when people who have got to try and assist you in your everyday operations.

16You do have limited insight in your ability to follow directions and to understand social norms and behaviour and other presentations.  You have now been, as I have said, in custody for 459 days.  It is clear to me that - and I do not need to go through the family history.

17Your parents separated when you were young and your mother clearly had substance abuse problems and you have been in trouble since a very young age.  I do note, however, that you do have support within the system still and there are people here to support you today.  At 20 there must still be prospects of your rehabilitation but it is going to take a pretty big effort on your behalf.

18You do not have an employment history and you would appear to have done some work whilst incarcerated but behavioural difficulties put an end to all that.  You have used drugs on a regular basis in the past.  Essentially as I understand it using whatever you could get your hands on.

19Alcohol does not appear to be a problem for you but then we will just have to see how all that pans out.  You have had difficulties with your mental health whilst in youth justice some years ago and it was seen that that may well have been substance induced in terms of hallucinations and the like.

20You have been in the system now for five years since you were 15 years of age and you have now done the longest time in adult custody of the lot and it is to be hoped that you have learnt something from that.  Your co-accused was given effectively six months with a two year CCO.  He did not have the same priors that you have and he did not have an intellectual disability that you have.

21Accordingly I think your involvement in it probably is greater.  I am not in a situation where I am able to give you any realistic way a youth justice centre disposition which would have been my primary purpose, but it is clear from the materials that would be a bit of a waste of time so far as you were concerned, and indeed may well involve you in disagreements, if I could put it that way, within the youth justice system with other inmates.

22What I am hoping to do is with the justice plan it will give you support that you need.  It will not place too many onerous conditions on you in functioning within the community, but probably even more importantly than that as it became clear to me today and to the elders as well that you have learned about the programs out at Wulgunggo Ngalu, which is a local rehabilitation centre and a learning place for young and older Aboriginal men.

23It is a situation where you have now for some time been in - I think I have already mentioned this - but a cottage situation in custody with other Aboriginal men and I have found it striking that you said there are also older blokes in there as well.  Wulgunggo Ngalu, if that can be organised, and I cannot force it to be organised, will mean that you have a transition into the community which would be very similar to the circumstances under which you seem to be surviving pretty well at the present time.

24You can stay there for longer than three months if you want to.  It will all depend upon your behaviour.  Having listened to you today in Koori Court,  I thought that you have participated well and not only today but the other week.  In the court process you showed respect for the elders, you spoke politely and I think you, again with limitations, spoke genuinely.

25I think that you would really like to turn your life around if that is possible and what the court is endeavouring to do is give you the opportunity to do that and you have the support of elders as I have indicated to you today and you have the support of experienced staff at Wulgunggo Nglau.

26I have made it clear to you what is going to happen if you just walk away, but again that is just going to have to be a matter for you, Corey.  In all the circumstances the appropriate disposition is that I give you a sentence which enables you to be released within a relatively short period of time.

27I do not want circumstances where you just be released out into the street, I want it to be an understood and arranged release into the community.  If Corrections - and I have made it clear to them that I want you to go to Wulgunggo Nglau - if they could have that assessment done in the next short period of time that would be good.  If not it gives people a week or so to organise appropriate accommodation for you in the interim and to put you in circumstances where you are not going straight back into the milieu of disaffected, drug affected young La Trobe Valley people.

28You clearly do have an interest in your culture and I think this could be very much a learning process for you.  I just got the impression talking to you during the sentencing conversation that you have progressed well in that respect in the circumstances that you have been in recently and that could be a matter which could have real significance in your turning your life around.

29I recall distinctly at the last sentencing conversation where Uncle Lloyd said to you, 'What do you want to do?'  Your response was, 'I just don't want to hurt people anymore'.  I found that a very powerful thing for a young Aboriginal man in your situation to say and I am sure it is a sentiment that everybody in the courtroom would support.

30So I have had you assessed for a community corrections order.  You have been found to be suitable.  The conditions I am going to put are that you comply with the justice plan for a period of two years which is the maximum time that I can do that.  The community corrections order will be with conviction obviously and will again be for a period of two years.

31The only other condition I will be putting in it will be that you attend programs to reduce the risk of you re-offending which is clearly understood between everybody involved in this process involves you going to Wulgunggo Ngalu hopefully.  If not there may be anger management programs, there may be other matters that could be attended to in that way.

32So accordingly on the indictment you will be sentenced as follows and if counsel can follow this I think I have got the maths right.  It is a bit hard to work out.

33I sentence you on the indictment to an aggregate period of 376 days imprisonment.  I direct that 369 days be reckoned as having been served under that sentence.  You are then to be placed if you agree upon your release on a two year CCO with the terms and conditions that I have just outlined.

34Just so that anyone reading this understands that I am also doing in a few moments time I am going to sentence you an appeal that is before me and which I have set aside the Magistrates' Court orders some time ago.  On that appeal it is my intention to sentence you to be imprisoned for a period of
270 days.

35I direct that 90 days of that be served cumulatively upon the sentence imposed on the indictment.  This is an artifice in some ways but I then direct that 90 days be reckoned as having been served under that sentence.  That seems to me to take into account parity with your co-accused and an appropriate sentence for Magistrates' Court matters which could not be regarded in any way, shape or form as trivial.

36The aggregate on the indictment offences will include all the summary matters.  On that there is an aggregate loss of licence of a period of
12 months, and on the summary matters and aggregate of 12 months to run concurrently.  That is 12 months off the road on summary matters as well as the indictment and I will deal with the appeal in a moment.

37In these circumstances but for your plea of guilty I would have sentenced you to be in prison for a period of 476 days with time declared and a community corrections order in similar terms to what I have already done today.

38On the indictment there is nothing else I have to say?

39MR HARRISON:  Nothing further, Your Honour.  Your Honour has already made the disposal orders.

40HIS HONOUR:  Yes, I have made the disposal orders.  That concludes the sentencing on that indictment.  On the appeal before me I simply order the magistrate's order is set aside, you are sentenced to an aggregate period of imprisonment of 270 days.

41I direct that 90 days of that be served cumulatively upon any sentence imposed earlier today and direct that 270 days be reckoned as having been served under that sentence.  As I have indicated that is a complicated process if I do not do it that way.  In fact it is almost impossible.

42On that I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of 12 months.  On the appeal matters aggregate loss of licence is six months backdated to 4 October 2018.  Does that all make sense?

43Effectively what I have done is I have given him 376 days which incorporates 90 for the other matter, bearing in mind his co-accused only got 180 with virtually the same sort of CCO.  I am going to get you in a moment, Corey, just to sign the community corrections order, which was explained before where you have got to comply or go along with a justice plan and they are going to try and get you into Wagonga Gnaraloo.

44You will get out in about a week.  I just want that done in a way that is organised.  I just do not want you walking out the door with a green tracksuit on so that is what is going to happen.  Corrections will try and get you in there as soon as they can and in that time I am hoping that you will get assistance with accommodation and those sorts of things.

45I remind you what I said before, you mess this up and I will bang you up again.  Corey, do you follow all that?  Tess will come over and have a yarn to you just to make sure you understand it all.  Good luck with it and he is going to need a lot of help.

46I expect you guys to support him with all this.  You can take Corey now, thank you.

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