DPP v Whiley

[2015] VCC 1683

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR-14-00740 CR-14-00741

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BOYLE DYLAN CRAGG

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATEOF HEARING:
DATEOF SENTENCE:	20 November 2015
CASE MAY BE CITEDAS:	DPP v Boyle
MEDIUMNEUTRAL CITATION:	[2015] VCC 1683

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Pleaded guilty to one charge of armed robbery – both using methamphetamine at time of offence – pleas of guilty were close to trial date – reasonable prospects of rehabilitation

Sentence:  Mr Boyle – 93 days’ imprisonment and three year Community Corrections Order

Mr Cragg – one months’ imprisonment and three year community correction order

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Mr B. Nibbs  OPP

For Accused Boyle  Mr P. Bloemen  Michael J Gleeson and

Associates

For Accused Cragg  Mr J. Fitzgerald  Victorian Legal Aid

HER HONOUR:

1Matthew Boyle and Dylan Cragg, you have each pleaded guilty to a charge of armed robbery, which has a maximum sentence of 25 years' imprisonment.

2I proceed to sentence you on the basis of the prosecution opening, which was read out in court on the day of the plea. I will briefly summarise  your offending.

3On 26 November 2013 you arrived at a house shortly before 7 am, looking for a person who owed you money from an earlier drug transaction, Mr Boyle. You knocked on the door and it was answered by the man who lived there, who told you that the person who you said owed you money no longer lived there. You, Mr Boyle, did not accept this and said that you had come to "beat the shit out of" that person and that you would burn the front door down and burn the occupant if he did not tell you where the other person was. This was not an idle threat so far as the occupant was concerned, as you were armed with a flare and a jerry can.

4You, Mr Boyle, asked the occupant to take you through to the garage and pushed past him to head in that direction. The occupant was scared and fearful of harm coming to others in the house, including his girlfriend and her two children and two other adults. He opened the garage and you, Mr Boyle, went through items in the garage, trying to find property belonging to the man who you said owed you money. Most of the property belonged to the occupant and this made you angry, such that you threatened him again to burn the house and to kill him, amongst other things.

5Despite learning that the property belonged to the occupant, you began stealing items from him after threatening him again, including his phone, returning the SIM card to him.   You spent some considerable time at the

property and were seen by the other occupants at the house. You told one of them you were trying to be calm and nice and that she should get back inside.

6You, Mr Cragg, stood by when Mr Boyle first threatened the occupant and then stayed at the front door for most of the time, smoking, and with the jerry can at your feet. At one point you moved the can to the side of the house. Later you moved down the driveway to where Mr Boyle and the occupant were at the garage and told the occupant not to upset Mr Boyle. You then carried stolen items to a car parked in the street.

7The fact that you have both pleaded guilty shows that you accept that you knew the items belonged to the occupant or at least did not belong to the man who apparently owed Mr Boyle a debt. This is in contrast to what you, Mr Boyle, said to the person assessing you for the community correction order. The report notes that you stated to the writer that you did not take anything that belonged to the occupant.

8The offence involved some planning, as you brought the jerry can and flare with you. It is clear that you, Mr Boyle, were the instigator of the offence and carried out most of the acts involved. While your role, Mr Cragg, was limited to supporting Mr Boyle by your words and presence and helping to remove the stolen items, that participation was still an important part of how the offence took place.

9While I have not received any statements from the occupants about the impact of your crime on them, I accept from the original statements that the main victim at least was intimidated and frightened throughout the time you were there and afterwards found it difficult to sleep and concentrate at work.

10At the time, both of you were addicted to the use of methamphetamine (ice).

This contributed to your offending: for you, Mr Boyle, because the original debt was in relation to the purchase of drugs, and for both of you because it marred your judgment and led to you participating in such a serious crime.

You were both at the time in a cycle of drug use and offending.

11There are some matters that I must take into account in your favour. I will deal with the factors that apply to each of you and then turn to look at your cases individually.

12First I take into account that you each pleaded guilty. Each of you has saved the community the time and cost of a trial and the victims from the ordeal of giving evidence at a trial, although I note that there was a contested committal held on 29 April 2014. Neither of you entered an early plea of guilty, with you, Mr Boyle, pleading guilty on 14 May 2015, and you, Mr Cragg, on the first day of the trial on 15 June 2015.

13During the months since the committal the victims would have thought that they still needed to give evidence. However, because of the ultimate saving to the community and the victims because there was ultimately no trial, the sentence of each of you will be less than it would have been had you been found guilty after a trial.

14Mr Boyle, you were identified as one of the offenders early on and found to be in possession of the stolen phone. You were arrested on 4 December 2013 and spent 93 days in custody before being released on bail.

15Mr Cragg, you were not arrested until 7 February 2014 and were released on bail immediately.

16I turn now to your individual circumstances.

17Mr Boyle, you are now aged 32 years and were aged 30 at the time of the offence. You grew up in difficult circumstances with an alcoholic father who separated from your mother when you were seven years old, and an older brother, who physically abused you over a number of years, resulting in you receiving a diagnosis of post-traumatic stress disorder.

18Fortunately, you have a very good relationship with your mother and with your sister, with whom you lived after being released on bail for this offence. You have reconnected with your father and now see him regularly. Both parents were in court on the day of the plea to support you, and your mother and sister provided references.

19You left school at 16 years and have had various semi-skilled jobs of up to two years' duration, including two years as a mature apprentice in carpentry. After you were bailed you obtained a job as a fencer and your employer provided a reference indicating that he is aware of the charge you are facing and is willing to continue to employ you.

20You have a long history of multiple drug use, beginning with daily cannabis use at age 13, through binge drinking of alcohol from the age of 14 to 24 years, and methylamphetamine use from the age of 16 to the time you went into custody for this offence at age 30, the last four years being intravenous use. This use peaked at one gram a day during the six months leading up to this offence and at that time you were reduced to living out of your car. You attempted treatment for your drug and alcohol addiction in 2012 but left just over halfway through the six weeks’ program at the suggestion of your then girlfriend, who was also a drug user. Not surprisingly, you then relapsed into further drug use.

21As a result of this long term drug use you have accrued 23 criminal charges between 2001 and 2012, including one of causing injury, seven relating to weapons, ten involving drugs and one dishonesty offence.

22In the past you have completed two community orders but twice breached a third received in 2012. Although you have been dealt with in a court since the armed robbery, including for more drugs and weapons charges, I am told that only a driving offence was committed after the armed robbery. You have not offended since your release on bail for the armed robbery.

23About five years ago your doctor referred you to a psychiatrist who diagnosed you with generalised anxiety on the background of childhood abuse and antisocial personality. He prescribed antidepressants, which you have taken on and off since then. Over the last two years you have been consulting a psychological for anxiety and depression, which she noted "often related to the use of non-prescription drugs". She provided two reports dated January and September 2015.

24In her second report she notes that your earlier attendances on her have been sporadic and you appeared to have been using drugs, but in 2015 you have attended five times to September and appeared sober and looking to engage in positive lifestyle changes.

25You were assessed by a clinical and forensic psychologist in May of this year, who found you presented as moderately anxious and mildly depressed. After the plea I received a further report and assessment by a neuropsychologist. The referral was apparently because of you having issues with forgetfulness, coping, lack of resilience and your anxiety and depression. He found some specific deficits but no evidence of what is called executive dysfunction and found that if in fact you were knocked out in assaults by your brother or in boxing training, these, together with your substance abuse, are likely causes of any cognitive impairment and your reduced mood may also be a contributing factor.

26It was submitted at your plea that you have taken significant steps to rehabilitate since your release on bail on 7 March 2014. I was told that you have been drug free since your arrest in December 2013 but I note that you told Dr Hughes that you last used methamphetamine in June this year, 2015, and that you still drink alcohol to excess on weekends and drank alcohol the day before he assessed you in October. Nine days earlier you had told the Community Corrections officer assessing you for a community correction order that you relapsed twice in the first weeks after your release on bail but

have ceased since.

27You have not committed any further offences since your release on bail. In 2015 you have been working with a number of support services. Since January of this year you have participated in a partners in recovery program, which provides a "wrap around" service, tailored to your individual requirements of drug abuse, homelessness, mental health issues, low self- esteem, social isolation and legal and financial matters. While being assisted by this service you have obtained housing and employment. Your worker, who you were seeing once a week and now see once a month, was in court to support you and provided a report. Since April you have worked with a care and recovery clinician at Substance Use Recovery Service, who assists you to maintain stable accommodation, to connect with your new doctor and who has arranged voluntary urine screening tests for drug use. That clinician was in court at sentence to support you.

28You see two counsellors on a weekly basis. This high level of assistance has not prevented some drug use this year, as you reported, nor reduced your alcohol use to a level that makes it necessarily less likely you may re-offend.

29You have been in a relationship with a young woman for the last 15 months.

She was a drug user but is no longer.  She is supportive of your rehabilitation efforts.

30On balance, despite your criminal history and your longstanding substance abuse and the different reports on recent drug use, I am satisfied that the chances of your rehabilitation are reasonably good because of all the steps you have taken in the 18 months you have been on bail. It is a recognition of the fact that with long term substance abusers often there are three steps forward and two steps back. In the context of all the other efforts you have made, variable reports of low level drug use do not reduce your chances of rehabilitation in any significant way.

31Two years have passed since you committed the offence. That in itself is not a factor to be taken into account in your favour because the time to trial is not unusual for a case involving two accused and your plea was entered close to the trial date, causing a further date to be set for the plea hearing. However, I have taken into account in your favour the way that you have used that time to make considerable progress in your rehabilitation.

32Application has been made for an intimate forensic sample to be taken from you and you have consented to this. I am satisfied that it is in the interests of justice, having regard to your prior convictions and the seriousness of this offence, 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 by wiping a swab inside your mouth. Although you have consented, I must inform you that if you change your mind the police may take a blood sample and may use reasonable force to enable that procedure to take place.

33I will return to sentence you at the end of these remarks.

34Mr Cragg, you are now aged 32 years and were aged 30 at the time of the offence. You had a happy childhood with your parents and a younger brother. Your parents separated when you were  aged  19.  You  left  school  after Year 10 and then worked as a landscape gardener for seven years on non- domestic sites, reaching supervisor level at age 19, which involved many responsibilities. At 23 you moved to another position, this time as a quality control supervisor, managing staff in that position also. After seven years there you moved to a position as a warehouse manager for a heating company with increased responsibilities including staff supervision.

35You were in a serious relationship with a young woman throughout your 20s and bought a house together. That relationship ended when you were about 29 and you were, apparently, devastated.   You had to sell the house and

decided to resign from your employment and move interstate for a fresh start.

36Before you got around to moving interstate you began living in a share house with so called friends who introduced you to methylamphetamine. Your life as a responsible and contributing member of society dissolved as your use of this dangerous drug developed from occasional to daily use. By 2012 you had spent all your savings on obtaining the drug and you became effectively homeless, staying at various friends' houses and with your father. This drug induced lifestyle led to your first court appearance in October 2012 when nine charges were dealt with on the one occasion.

37These included two dishonesty offences, three weapons charges, and a drug possession charge. You received a community correction order, which you have breached twice. The first time you were released on a further community correction order but the second time, a prison sentence was imposed. You have received prison sentences in March 2015 and August 2015, the last of which you are currently serving with a release date of either 12 or 15 January 2016. You have previously received a prison sentence of 33 days plus a community correction order in September 2014 for offending committed after the armed robbery.

38I was told that the sentence imposed recently was for offences involving burglaries and police pursuits which breached the community correction order. There are no further offences pending and it was submitted on your behalf that the sentence to be imposed today signals the end of the destructive lifestyle you engaged in between early 2012 and early 2015.

39Your father was a police officer and you are rebuilding the relationship with him which broke down because of the poor choices you were making. Your mother and her new partner continue to have a relationship with you. In December 2012 you began a relationship with a young woman and together you have a son, born in January 2014.  After you were released from prison in

September 2014 you were able to spend time with your son, although your relationship with his mother did not resume until after you went back into custody in March this year. You intend to live together on your eventual release.

40It was submitted that this relationship and your son have motivated you to address your drug issues. At the date of the plea in September I was told that you were about to start a drug rehabilitation course in custody. Today I was told that you are halfway through that course.

41During your time in custody you have become a leading hand in the kitchen at Port Phillip Prison and completed a number of skills courses.

42On balance, despite the fact that you continued to commit offences after this armed robbery and while you were on bail for it, I am satisfied that the chances of your rehabilitation are reasonable because of the shorter period of your criminal history and your excellent work history and good character up to the point at which you became addicted to methylamphetamine.

43Two years have  passed  since  you  committed  the  offence.  As I  said  to Mr Boyle, that period of time is not in itself a factor to be taken into account in your favour, because that time to trial is not unusual for a case involving two accused, and your plea was entered on the first day of the trial, causing a further date to be set for the plea hearing. However, I have considered what you have done in your life over that two years, which, unfortunately, includes committing further offences and time spent in custody.

44Mr Boyle, I sentence you as the principal offender. The commission of the crime was your idea and you spent considerable time with the victim and acted in a threatening way towards him.

45Mr Cragg, I sentence you on the basis that your involvement was limited to providing criminal  support  to  Mr  Boyle  by  your  presence  and words  and

actively removing stolen items from the property. You apparently received no financial benefit from the armed robbery. For both of you the sentences I impose must seek to deter others from committing armed robberies and deter each of you from committing such a crime again.

46Armed robbery is a serious offence, as shown by the maximum penalty of 25 years' imprisonment. The court must reflect in the sentences imposed today, the community's denunciation of your crime: attending a person's home in early morning, armed, threatening the victim by words and conduct and stealing a number of items from him, a person who was a stranger to both of you.

47Mr Boyle, your counsel conceded that your role was more involved than that of Mr Cragg, and on the day of the plea submitted that you had made a wholesale change to your life, that returning you to gaol would be counter- productive, and that you should be sentenced to the time you have already served, and released on a community correction order.

48Mr Cragg, your counsel submitted that your involvement was limited and arose out of unexpectedly meeting up with Mr Boyle and that my sentence of you should acknowledge your efforts at rehabilitation and not interfere with your parole date. It was submitted that this could be achieved by a sentence of imprisonment and release on a community correction order or a straight sentence of imprisonment. This submission was made two months ago and so the time left to your parole date is now much shorter.

49The prosecutor submitted at the plea that Mr Boyle should receive a further term of imprisonment before release on a community correction order on the basis that the 93 days served was not a sufficient period of imprisonment in all the circumstances.

50For Mr Cragg, the prosecutor submitted that the previous breaches of a community correction order were to be considered if such an order was made

here after a period of imprisonment but that for both men there is a need for the sentences to reflect the totality of their offending and parity between them so far as is possible and appropriate.

51Both of you were assessed by a Community Corrections officer. Neither report specifically states that you are suitable for such an order but does offer suggested conditions if the order is made. Both of you were assessed as being at medium risk of re-offending, which, on my own assessment, is probably about right.

52I have found this a most difficult sentencing exercise. In the end I have decided that despite the serious nature of the offence, objectively it is not a high level example of an armed robbery, and the factors in favour of mitigation of sentence have led me to a conclusion that I do have an option to imposing a further term of imprisonment on Mr Boyle.

53I will make the formal orders in a moment but, in plain language, Mr Boyle will be sentenced to a term of imprisonment equal to that he has already served and ordered to complete a three year community correction order.

54The lenient sentence I impose on him in the circumstances affects the sentence I impose on Mr Cragg. Mr Cragg will be sentenced to one months' imprisonment and a three year community correction order.

55I will deal with Mr Boyle first of all. So Mr Cragg can be seated for the moment.

56It is some time since these conditions on a community correction order were explained to you, Mr Boyle, so I will just remind you that the conditions that attach to every order are that an offender must not commit another offence punishable by imprisonment during the period of the order, which, as I have said, will be for three years. You must comply with any obligation or requirement.    You  must  report  to  and  receive,  visits  from  a  Community

Corrections officer. You must report to the Community Corrections Centre, which will be specified in the order that you receive today, within two clear working days. You must notify the Community Corrections office of any change of address or employment within two days. You must not leave Victoria without permission and you must comply with any direction given by the Community Corrections office.

57In addition to that, the following special conditions will be imposed. That you be under supervision, that you be assessed and if found necessary, receive treatment for drug abuse or dependency, that you receive mental health assessment and, if necessary, treatment, that you undertake offending behaviour programs as directed, and that you complete 350 hours of unpaid community work.

58Do you understand those conditions? Do you agree to being released on an order with those conditions?

59ACCUSED BOYLE:  Yes, Your Honour .

60HER HONOUR: All right, thank you.  You can take a seat for the moment.

61Mr Cragg, thank you.

62I will not repeat the conditions that are attached to every order unless you need me to do so. Do you understand those conditions?

63ACCUSED CRAGG: Yes, Your Honour.

64HER HONOUR: The special conditions that will be attached to your order are that you be under supervision, that you undertake 300 hours' unpaid community work, that you be assessed and, if found necessary, be treated for drug abuse and dependency, that you be assessed and, if necessary, undertake offending behaviour programs, and that you be assessed and, if necessary, undertake any other treatment and rehabilitation as required.

65Do you agree to being released on an order with those conditions?

66ACCUSED CRAGG: Yes, Your Honour.

67HER HONOUR: Yes, all right, thank you. Mr Boyle, if you could stand up again, please, both of you. I need to tell you that if you are ill or there are exceptional circumstances, your orders may be changed or even suspended for a period of time. So if your circumstances change you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections office and I recommend you also get legal advice.

68If you do not complete any condition of your orders you will be brought back before me to be re-sentenced and also dealt with for breaking the condition, whichever condition it is. You will then almost certainly be sentenced to a term of imprisonment. So, Mr Boyle, do you understand what will happen if you fail to do what is required under this order?

69ACCUSED BOYLE: Yes, Your Honour.

70HER HONOUR: Mr Cragg?

71ACCUSED CRAGG: Yes, Your Honour.

72HER HONOUR: All right, thank you. You are convicted and sentenced as follows.

73Mr Boyle, to 93 days' imprisonment and then to be released on a community corrections order for three years with the core and special conditions as previously outlined. I declare that you have already served 93 days and that these are to be administratively deducted from your sentence. If you had not pleaded guilty the sentence I would have imposed is three years' imprisonment with a minimum of 18 months.

74Yes, you can be seated.

75Mr Cragg, you are sentenced to one months' imprisonment and a community corrections order to commence two days after release from the sentence you are currently undergoing, for three years with the core and special conditions I previously outlined. Under s.16(3C) of the Sentencing Act I direct that the term of one month be served concurrently with any sentence you are undergoing. If you had not pleaded guilty the sentence I would have imposed is two years, three months' imprisonment with a minimum of 15 months.

76Yes, just take a seat, Mr Cragg.  I will just have those documents prepared.

Each of you will be required to sign those and you will receive a copy of them.

77Mr Nibbs, in respect of the 464Z application can you just remind me whether I received those in advance or have you got those there to hand up? I think we have got another copy available to us anyway, so - - -

78MR NIBBS: And if you do not we can have those emailed to you.

79HER HONOUR: Yes, I think my associate says she has them on screen so I will have that printed off as well.  Thank you.

80MR NIBBS: Thank you, Your Honour.

81HER HONOUR: So, Mr Boyle and Mr Cragg, my associate will now come up to the dock and provide you each with a copy of the community correction order. You will be asked to sign where indicated to show that you do agree to stick to these conditions and I will then sign the order. Thank you.

82Yes, thank you, Mr Boyle can be released from the dock.

83All right. So I have now signed those orders, community correction orders. A copy will be made and given to you each before you leave court. It is, obviously, the hope of the court that I do not see either of you again. I thank all counsel for their assistance and I will adjourn now until 9 am, Monday morning.

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