DPP v Taylor
[2017] VCC 386
•6 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01671
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN TAYLOR |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2016, 16 February, 17 March 2017 | |
DATE OF SENTENCE: | 6 April 2017 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2017] VCC 386 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Armed Robbery – young offender
Cases Cited: R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Sentence: TES 3 years 4 months with a minimum of 2 years to be served before becoming eligible for parole, disposal order and forensic procedure order
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APPEARANCES: | Barrister | Solicitors |
| For the DPP | Mr Manning on 1/12/16 for plea | OPP |
| For the Accused | Mr J. Riordan | VLA |
HER HONOUR:
1 Ryan Taylor, you have pleaded guilty to two charges of armed robbery, which is an offence with a maximum sentence of 25 years’ imprisonment.
2 I sentence you on the basis of the agreed summary which was read out in court[1], and on the basis of the CCTV footage which was played in court[2]. I will briefly describe your offending.
[1] Exhibit A
[2] Exhibit B
3 For charge 1, on 2 July 2016 at about 11pm, you were dropped off by someone else by car at closing time of a liquor store. You approached two workers who were outside the door, just closing up. You were attempting to hide your identity by having the hood of your jumper over your head and a blue cloth across your face. You had a large kitchen knife about 15-20 cm in length and you pressed that against the back of one worker while grabbing the wrist of the other. You demanded that they re-open the store and give you money. When they did unlock the door, you all went in, with you pushing the worker whose back you had been holding the knife against, and dragging the other worker by the wrist. The register was opened and you were given some cash, but you leaned over the counter and removed the entire cash tray, emptying it into the bag you had with you. You stole about $400. You also demanded the workers give you money from their wallets, and stole a further $400 from one, and $50 from the other. You then stole the credit card of one and demanded that the other give you cigarettes and that both give you bottles of alcohol. Throughout this you were waving the knife around and pointing it towards them. You left in the car that had been used to drive you there, as the driver presumably waited for you in the ‘get-away car’.
4 For charge 2, two days later, just before 11pm on 4 July 2016, you went into a BP service station where a woman was working alone. You had a beanie on your head and covered your face with a blue handkerchief or cloth. A co–offender stayed at the door, while you approached the counter where the worker was and pulled out from under your clothes a long, curved knife with a wide blade. You laid the knife on the counter and demanded money, telling the worker to put the cash tray on the bench and give you tobacco pouches. You stole the cash tray and its contents, and six tobacco pouches, while your co-offender stole some cans of drink.
5 On 5 July, police arrested you after you attempted to run away from them. You were found with a blue cloth, about $60 in cash and three tobacco pouches, and were wearing the same clothes as had been observed in the CCTV footage of the two crimes. You were not able to be interviewed because of your drug-intoxicated state, however it is clear from what your barrister has put to me on your behalf that the purpose of the crimes was to obtain cash for your drug use, particularly “ice”, and that you were using drugs daily at the time of the offending, describing yourself as being on an ‘ice bender’.
6 Armed robbery is a very serious crime, and yours are serious examples of this type of crime that is all too often committed by drug-affected people on people working at night, in circumstances which make them vulnerable to people like you looking for easy money for more drugs. Your crimes are made even more serious by the use of a disguise, the waving around of the weapon or having it in clear view of the victim, the element of pre-planning involved in having a disguise and a weapon in both crimes, and a get-away car for the first. The second armed robbery is also made more serious by the fact that you had a co-offender standing guard at the door, and their presence was likely to have made the worker even more fearful and intimidated.
7 Although none of your victims provided formal victim impact statements, I have no doubt that they would all have felt fear and distress at your actions, and the first two victims also suffered loss of their own money. The victim of the second crime was working in her first week of the job, and must have been affected by your crime in that context. You might think that because you did not physically injure them that they are not affected by your actions. Well, as you should know from your own experience, the way people behave towards you, good or bad, can have a big impact on how you feel about yourself and about life. I am satisfied that your victims would have suffered considerable harm as a result of your criminal actions towards them, and I take that into account in deciding the appropriate sentence.
8 You are aged 20, and were aged 19 at the time of the offending. Despite your young age, you have gathered a large number of convictions and appearances for serious dishonesty offences, all in the Children’s Court, starting in 2008 when you were aged 12, with charges of burglary, theft and possessing a dangerous article. At 12 and a half, you committed your first armed robbery, and since then, you have committed two more armed robberies, two attempted armed robberies, and three attempted robberies, as well as drugs, weapon and injury offences. You have breached many court orders that you have been placed on. The one bright light in all of this is the fact that you stayed out of the courts between April 2014 and when you committed these offences in July 2016, by far the longest period of time that you have managed to do that since you began offending. I am told that you were able to do this with the support of your then partner, and that you reduced your drug intake.
9
I have been told about your background and personal circumstances, and a lot of the information is contained in the two reports of forensic psychologist,
Ms Gianvanni[3], and also in the pre-sentence reports I obtained from the Department of Justice and Regulation as to your suitability for a community correction order[4], from the Department of Health and Human Services as to your suitability for a Youth Justice Centre Order[5], and from a psychiatric report from Forensicare[6].
[3] Exhibit 2 - dated 29 November 2016 and 15 March 2017
[4] Dated 10 January 2017
[5] Dated 7 February 2017
[6] Dated 2 February 2017
10
I first heard your case on 1 December 2016, and the plea was adjourned to obtain the pre-sentence and Forensicare reports. When the case came back on 16 February, your barrister asked me to adjourn the case to get a second report from Ms Gianvanni, particularly to address matters raised in the Forensicare report. It was adjourned until 17 March when I received
Ms Gianvanni’s second report and heard further submissions from your counsel and the prosecutor. The delay since then until your sentence date today has been because of the high workload of this court, but I do apologise for not being able to have this finalised for you sooner.
11 Returning to your background, it is clear that you had a dreadful childhood and this has impacted on your life so far. I will summarise it briefly here, but I do not downplay it by summarising; I am doing this because the full details are in the reports I referred to.
12 You are the eldest child of five children. When you were about two years, your mother was in hospital with another pregnancy, and you were looked after by an uncle who was apparently not a good influence. Your parents separated for a time and then resumed their relationship. When you were about six, you were showing signs of aggressive and disturbing behaviour that were so significant that you were admitted to a child psychiatric unit for four months, after which you went into foster care for the first time. At about the age of six or seven, you went to stay with an aunt, and over a period of two weeks you were emotionally, physically and sexually abused by her boyfriend and other men in the most shocking way, before child protection authorities intervened and you were reunited with your parents. However, this lasted only a short time because your behaviour deteriorated further, which was highly likely to be because of the abuse you had suffered, and you were again admitted to an inpatient unit for children with mental health problems. After that, you spent very little of your childhood with your parents and siblings, spending some time with them on occasions but then returning to different foster care placements. From the age of eight or nine, you lived in foster care, or in youth residential units, and later, you were in youth detention, ‘crashing’ with mates, or living on the street. In foster care you were apparently bullied and exposed to physical and sexual abuse, and you were admitted to a child mental health unit at the Austin Hospital at age ten. You were later bullied again when you were in your first youth detention at age 12 or 13.
13 It was apparently in the foster care placements that you learned about crime and were introduced to drugs by older children, beginning using alcohol and cannabis at age nine; by age 11, you were using “cocaine”, “ecstasy” and “speed”; and by age 12, you were dealing in drugs to support your own use. From the age of 13 or 14, you became addicted to “ice”. It is in this context that your criminal history has to be considered. You told Ms Gianvanni that you are using drugs while on remand, but apparently less than you thought you would. So you have used drugs continuously from the age of nine to 20 years.
14 You have had six children with six different women, having a child born every year since you were 15. You have no contact with any of the children, but have maintained some contact with the mother of the eldest. Your parents have stayed supportive of you throughout your troubled history, visiting you in custody, and you are close to your mother, who has been in court during your hearings. You have said you want to move out of the city away from bad influences once you are released, and your mother told your barrister that the family will support you in this and move you to the country.
15 Apart from work you have done on remand, and courses you completed while in custody to be allowed to do that work, you have had no employment. You did complete a Building and Construction Trade Tester course in July 2012, and began a pre-apprenticeship, but after a positive start, you stopped attending and did not complete it.
16 Ms Gianvanni formed a number of opinions about your situation, based on her observations of you, and what you told her. She was unable to formally administer psychological tests as you were unable to read and fully understand the written material because of your lack of schooling past year 7. She is of the view that you no longer show the symptoms of Attention Deficit Hyperactivity Disorder, and that the previous diagnosis of Oppositional Defiant Disorder is best described by a diagnosis of Anti-Social Personality Disorder and psychopathy features. She recommended that you complete the High Intensity Violent Intervention Program.
17 After her second assessment of you, Ms Gianvanni formed the opinion that you have signs of “what is known amongst the psychological and therapeutic community as Complex Post Traumatic Stress Disorder”[7], a condition she says is still under research and not yet recognised by the major world health bodies. She describes Complex PTSD as being characterised as repeated and ongoing exposure to traumas since a young age, so that people develop a variety of strategies to survive these traumas. It is her view that this condition indirectly caused the offending for which I am sentencing you. She says this is her view because you say you were dared by your so-called friends to commit the crimes, to show that you had not ‘lost your cool’, as you had not been in trouble for two years, and she says that in the context of you being impulsive and reckless and disinhibited by drugs, you felt the need to prove your friends wrong and avoid being bullied and ridiculed as you had been as a child. So, Ms Gianvanni says, you lost control of your impulses and behaviour and made the decision to commit the armed robberies.
[7] See report dated 15 March 2017 8.8, p12 of 17
18 Based on these opinions, your barrister submitted to me that your condition of Complex PTSD, made worse by your antisocial personality and substance abuse disorder, is a mental impairment that directly affected your ability to appreciate that what you were doing was wrong or impaired your ability to make calm and rational choices when you committed the armed robberies. As a result, he submitted that I should apply some of the principles in a case called Verdins.[8]
[8] [2007] VSCA 102; (2007) 16 VR 269
19 The prosecutor on each hearing date submitted to me that you did not have a condition that impaired you to the extent that it should be taken into account that way, pointing out that the evidence shows that you did appreciate that what you were doing was wrong, as you had made some preparations by having a disguise, and a weapon on both occasions, and either a get-away car or an accomplice, and that you knew you were committing the crimes to get money for more drugs, even if you were ‘dared’ by your friends.
20 I have decided that there is not sufficient evidence for me to be satisfied that there was a direct connection between any condition affecting your mental state and the offending. It is not necessary for me to decide if I accept that there is a condition known as Complex PTSD. I am satisfied that you are highly likely to be suffering from post-traumatic stress disorder from a number of causes in your extremely unhappy and tragic childhood. However, I am not satisfied that the PTSD, whether Complex or not, was a direct cause of your offending, nor that it affected your mental functioning so as to reduce what lawyers call your moral culpability or make general and specific deterrence less relevant in your case. It is impossible to untangle the impact of that PTSD from the impact of your drug affected state, as you were on ‘an ice bender’, or from the impact of your long term drug use, or from the impact of your personality disorder, or from the combined impact of all these things. As a result I will not be applying the principles in Verdins.[9]
[9] Ibid
21 What I am satisfied about though, is that your disrupted and dysfunctional upbringing has led you to this point. You have developed a tough outer skin, and you feel you need it to survive in custody, and when you are outside. The reports show that you have been behaving in a certain way to keep up your reputation while on remand. I accept that your background gave you very little choice but to do that to survive when you were a child and young teenager effectively alone in the world, and now you are an adult, you have yet to un-learn that sort of angry, aggressive and reckless behaviour.
22 It is a very sad situation that you are now a 20 year old man who cannot read or write properly, who has never had a paid job, who has been unable to find a stable relationship but fathered six children, who has taken drugs daily for more than a decade and does not want to stop at the moment, and who does not know how to live in society. I suspect that inside, you are still the angry six year old who does not know why he behaves like this, but does not know any other way to behave. I think that you have been let down by just about everyone who had contact with you from the age of six, and nothing that was done helped you to change your behaviour, and a lot of dreadful things happened to you that made your behaviour much worse. I cannot change any of that, and I take that background very much into account in deciding the sentence I will give. It will be less than might otherwise have been given, because of your deprived and abusive background, which I find has reduced your moral culpability to a small extent.
23 There are some other factors that I must take into account in your favour as against the seriousness of your offending. The first is the fact that you have pleaded guilty. You are entitled to have that taken into account in your favour and I do so. It was indicated at an early stage that you intended to plead guilty. Because of your early plea, the community has been spared the time and cost of a trial, and your victims have been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
24 I do find some limited remorse from the fact of your plea of guilty and take that into account in your favour also.
25 The next matter that I take into account is that you are still only aged 20, and that means, despite your long criminal history, that my sentence should provide an opportunity for you to learn to live your life differently. Put another way, my sentence today should have as a major purpose the promotion of your chances of rehabilitation, but it is up to you, and it will not be easy to change your behaviour, and to give up drugs, but these are the changes that you have to decide to do for yourself.
26 The reports I received all indicated that you are at a high risk of re-offending, and I agree. That means that, although rehabilitation should be a major purpose in sentencing you, because of your high risk, the protection of the community is a very important sentencing purpose and so my sentence needs to also try and deter you from committing more offences. That is called specific deterrence. Next, because armed robberies are committed far too often on easy targets like the ones you chose, another purpose of my sentence is to try to deter others from committing such offences. That is known as general deterrence.
27 You have been in custody since your arrest on 5 July 2016, and I take into account that this is your first time in adult custody.
28 Your co-offender for the second armed robbery was dealt with in the Children’s Court in September 2016. He has a relevant criminal history I am told, and was sentenced to a Youth Supervision Order, without conviction, for 12 months. I do not have the details of his criminal history, nor his age, and your barrister conceded that your sentence and his must be different. Your barrister has also said that he is no longer submitting that I should consider Youth Justice Centre detention, and the pre-sentence report found you were not suitable.
29 I confirm that the only appropriate sentence is one of imprisonment, and, although Community Corrections reluctantly decided in their report that you were suitable for a community correction order despite you having breached many court orders in the past, I do not consider that a combined sentence of imprisonment and a community correction order is an appropriate sentence in all the circumstances.
30 Stand up, please, Mr Taylor.
31 You are convicted and sentenced as follows:
32 On charge 1 – three years’ imprisonment;
33 On charge 2 – two years eight months’ imprisonment.
34 Charge 1 is the base sentence. I direct that four months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. That makes a total effective sentence of three years four months’ imprisonment.
35 I direct that you serve two years before becoming eligible for parole.
36 I declare that you have served 247 days in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
37 If you had not pleaded guilty but had been found guilty of these crimes after a trial, the total sentence I would have imposed is five years six months.
38 Finally, application has been made for an intimate forensic sample to be taken from you and you have not opposed this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not opposed the order, if you change your mind, I must inform you that the law is that the sample that will then be taken will be a blood sample and the police may use reasonable force to enable that procedure to take place.
39 I have signed the disposal order. Are there any other matters?
40 MR RIORDAN: Nothing further, Your Honour.
41 HER HONOUR: All right, thank you. Mr Taylor may be removed.
42 MR RIORDAN: As the court pleases.
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