R v Brereton
[2013] VCC 1904
•1 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
CR-13-00892
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZAC BRERETON |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October and 1 November 2013 | |
DATE OF SENTENCE: | 1 November 2013 | |
CASE MAY BE CITED AS: | R v Brereton | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1904 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Mandie | Office of Public Prosecutions Victoria |
| For the Accused | Mr R. Kelly | Mike Wardell |
HIS HONOUR:
1 Zac Brereton, you have pleaded guilty to one charge of theft and one charge of armed robbery.
2 The prosecutor opened the circumstances of the offending by reading from two documents which were both tendered.
3 In short, on 9 November 2012 you stole a case of 24 Jack Daniels and Cola cans and a packet of cigarettes from a hotel in Sebastopol.
4 On 7 December 2012, you robbed a taxi driver of money and his wallet using a pair of scissors as a weapon.
5 A victim impact statement from the taxi driver was tendered. The taxi driver suffered financially but more significantly he, understandably, suffered emotional trauma and loss of enjoyment of his work.
6 The circumstances of the armed robbery are very disturbing. You lunged at the driver twice. On the second occasion the driver said you came within two centimetres of his throat. You were with a co-offender at the time, however, he was not charged with the armed robbery.
7 You were arrested on 15 February 2013 and interviewed. You made full admissions to the theft and also admitted the armed robbery, stating that you and your co-offender spent the money obtained on drugs. You cooperated with police taking them to the scissors and the victim’s wallet.
8 You have an extensive criminal history commencing in late 2006 with the most recent prior matter being in mid-May 2012. Your offending history includes crimes for drugs, dishonesty, causing injury, violent offending including robbery, attempted robbery and attempted armed robbery, failing to answer bail, damaging property, driving offences and possessing weapons.
9 You have had numerous dispositions imposed including Youth Supervision Orders, undertakings, Youth Attendance Orders, fines, a Community Based Order and detention in a Youth Training Centre. You have a history of breaching supervisory orders, including breaching a CBO imposed in November 2011 for not attending the required drug and alcohol courses.
10 On the other hand, your prior criminal history contains no sentence of imprisonment.
11 You spent 3 months in a Youth Training Centre in 2012 from 15 May until 28 August. After your release you admit you engaged in what your counsel described as an orgy of drugs and alcohol with the current offending occurring in that setting.
12 You spent time in an adult prison after being arrested on the current matters until you were released on bail about two months later on 17 April. You were bailed to appear before this court sitting at Ballarat in August but failed to do so. You told your counsel that you have had problems again with drugs recently and I understood this to at least partially explain why you did not surrender yourself once when you became aware that you had been required to do so. You told your counsel that you did not receive the notice of the requirement to appear until two days after the due date. You then did a ‘runner’, as I understand. A warrant was issued and you were arrested on 11 October and have been in adult prison since. You were being held at the Ballarat cells until this week when you were brought to Melbourne and are now at the MAP. You complain that you have been assaulted in the Ballarat cells. I have got no reason to doubt this and of course it is quite unacceptable that you should be so treated.
13 I was told that the three months spent in youth detention at Parkville last year were beneficial because you were able to learn to read and write in this brief period or at least improve your literacy skills. You were also able to detoxify.
14 Your time in adult prison earlier this year was difficult for you. You were stood over, had medication taken from you and were assaulted.
15 You pleaded guilty at the first reasonable opportunity and must benefit from this. Your pleas save time, expense and the need for witnesses to give evidence, particularly the taxi driver.
16 I accept that your admissions to police and pleas of guilty show an acceptance of responsibility. I also accept that you have shown remorse for your actions and that this is reflected in your pleas.
17 You gave the liquor store attendant from who you stole the alcohol your personal details and you were easily recognisable on the taxi CCTV footage. There was no disguise and you were well known to police.
18 I am prepared to accept that initially you intended to simply not pay for the taxi fare and decamp and at the last moment you and your co-offender decided to take the driver’s wallet. It was then that you decided to use the scissors as a weapon. This seems to be the reason your co-offender was not charged with armed robbery.
19 A psychological report prepared by Ian Joblin was tendered. You are not yet 21 but will be in about a month’s time. You have long term drug problems and have a difficult and disadvantaged background. Your parents separated when you were about 6 or 7. They attended court to support you. They remain friends but live separately. Your father has a past history of alcohol problems and your mother also has had alcohol as well as drug problems.
20 You began secondary school but in Year 7 were sent to an alternative education program. You have worked and have work available to you as a plasterer with your brother.
21 Mr Joblin noted various diagnoses previously made of you, including ADHD, oppositional/defiant disorder, major disruptive behaviour and an ‘intellectual disability’. You have been on medication such as Ritalin. Mr Joblin could detect no evidence that you currently have an intellectual disability.
22 Mr Joblin thought you were easily bored and noted the dangers this posed. He also noted your serious history of drug and alcohol abuse, particularly in someone so young. He noted your drug and alcohol use following release from Parkville. You stayed at your mother’s house drinking excessively, using amphetamine, heroin and ice and began a relationship with a young lady who shared your interest in drugs. Mr Joblin had ‘some concern’ that your childhood disorders and continued drug use posed the risk that if you were not assisted you could become antisocial and develop a psychopathic personality, although you have not reached this stage.
23 I need to be guarded about your prognosis. Clearly, you need long-term guidance, support and close monitoring.
24 Mr Joblin thought you have some insight into the deleterious effect of drug taking.
25 Charge 2 is particularly serious.
26 The prosecution submitted that a total effective sentence of between 3 years and 6 months and 5 years with a non-parole period of between 2 years and 6 months and 3 years and 6 months was appropriate.
27 At the conclusion of sentencing submissions on 17 October I raised the question of whether detention in a Youth Justice Centre was open. As I followed the submissions the prosecution, at least initially, argued that you should be sentenced to adult imprisonment. On reflection, the prosecution agreed that before taking this step I should have you assessed to determine your suitability for detention as opposed to adult imprisonment. I ordered that a pre-sentence report be prepared. Your counsel had submitted that detention was the appropriate penalty.
28 I was also advised by your counsel that you had an appeal pending in this court from a sentence of the Magistrates’ court at Ballarat 2 days earlier on 15 October and that you had been imprisoned for 7 months for the crime of affray. I was initially advised that your appeal was against conviction and sentence; however your counsel made it clear that the appeal would be confined to sentence. With your agreement and that of the prosecution I suggested that it would be beneficial if I heard that appeal before determining what I considered was the appropriate penalty for Charge 1 and Charge 2. This was particularly so given your rapidly approaching 21st birthday and the unavailability of youth detention as a sentencing option after that date.
29 This morning I have heard that appeal. I will sentence you for that matter after I complete these sentencing remarks and sentence you for the 2 charges on the indictment.
30 The pre-sentence report is helpful and comprehensive.
31 The writer respectfully recommends that you be found unsuitable for a Youth Justice Centre Order. The nominated reasons, in brief, are your poor attitude when previously in detention, the fact that you are very close to 21, the length of time you have spent in adult prison, the severity of the offending and the lack of responsibility in failing to attend court in August.
32 Your counsel urged me to impose a sentence of detention rather than a prison sentence.
33 The prosecution submits, once again, that only immediate imprisonment is appropriate and confirmed the sentencing range instructions previously referred to.
34 I am driven to the same conclusion. That is, that only immediate imprisonment is appropriate. I am aware of what it means to send a young offender like you to prison, however, as I see it that is what is necessary when regard is had to all the circumstances including the nature of the armed robbery, your age, character and past history.
35 However, because of the matters relied upon in mitigation including your age and vulnerability I propose to moderate the penalty to the extent I consider permissible.
36 On Charge 1, theft, you will be convicted and sentenced to one month's imprisonment.
37 On Charge 2, armed robbery you will be convicted and sentenced to 3 years and 3 months imprisonment.
38 The sentences are to be served concurrently.
39 I order that you serve 2 years imprisonment before being eligible for release on parole.
40 I will make the order for the taking of a forensic sample. You must understand that a police officer may use reasonable force to obtain the sample.
41 I will make the compensation order sought and which, to your credit, you consented.
42 You have served 82 days presentence detention. This is to be reckoned as time already served on the sentence I have imposed.
43 Had you not pleaded guilty I expect I would have sentenced you to a total effective term of about 4 years and 3 months' imprisonment and fixed a non-parole period of about 3 years.
44 I can see that you are distressed, as is your mother. The prison authorities are to note that you have expressed suicidal thoughts when previously in custody. I propose to provide them with a copy of Mr Joblin's report and the pre-sentence report.
45 You can sit down.
46 Is there anything that I have overlooked or that needs correcting that counsel can identify? I will refer to the compensation order.
47 MR KELLY: No, Your Honour.
48 HIS HONOUR: Very well.
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