R v Caldwell
[2016] VCC 36
•22 January 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01638
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON KENNETH CALDWELL |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2016 | |
DATE OF SENTENCE: | 22 January 2016 | |
CASE MAY BE CITED AS: | R v Caldwell | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 36 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Walton | Office of Public Prosecutions Victoria |
| For the Offender | Mr N. Leslie | Slink and Keating |
HIS HONOUR:
1 Aaron Kenneth Caldwell, you have pleaded guilty on indictment to one charge of armed robbery, 2 charges of theft, one charge of obtaining a financial advantage by deception and burglary. You also pleaded guilty to the summary charges of drive whilst suspended and possessing a controlled weapon.
2 The prosecutor opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening upon Plea’, which was tendered.
3
In short, in mid-June 2015 you stole some number plates from a car
(Charge 1, theft) and attached them to the car you were driving, and some days later drove to the car park of a railway station where you pointed and held an imitation gun against the stomach of a female who had alighted from her car and was about to catch a train forcing her to surrender her handbag
(Charge 2, armed robbery). On the same day you used a debit card you had taken from the victim of the armed robbery to purchase a number of items to the total value of $861.96 from various stores (Charge 3, obtaining by deception). A week later you entered a building site with others and stole a truck which you used to get home and which you parked about 150 metres from your home (Charges 4 and 5, burglary and theft).
4 You were suspended from driving at the time you drove away from the armed robbery (summary charge 5).
5 You were arrested by police at your home in late June. Items connected to the armed robbery were located, as was a World War 1 bayonet (summary charge 17). This belonged to your grandfather and was in your car because you had been moving some of your property from one residence to another.
6 When interviewed you made very substantial admissions. You were arrested and remanded in custody and have remained in prison since this time.
7 You were using drugs (ice) at the time of the offending but your motivation was to obtain money or goods to support your family, you being under financial pressure at the time. There was clearly some planning involved in the armed robbery.
8 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. I accept that your pleas are reflective of remorse.
9 As expected, the victim of the armed robbery has suffered significantly.
10 You have consented to me making orders for the taking of a forensic sample, disposal, forfeiture and compensation. My reasons for making the order for the taking of a forensic sample will appear in the order. A police officer may use reasonable force to obtain the sample.
11 You have a relevant history of prior offending. Some matters on your record are Children's Court appearances over 10 years ago and I propose to disregard them. [NB These matters were in fact deleted from the filed copy of the criminal record].
12 Other appearances have been for offences of dishonesty, driving offending including three previous appearances for driving without licence authorisation and violence. You were convicted of 2 charges of robbery in March 2011 and released on an 8 month wholly suspended sentence. You were sentenced to imprisonment for driving whilst disqualified/unauthorised in 2013. You were sentenced to imprisonment for 3 months in 2014 for obtaining property by deception and the sentence was wholly suspended.
13
On 15 July 2015 you were sentenced to 15 months' imprisonment in the Magistrates' Court. All pre-sentence detention, including the period on which you were being held on the current offending, was counted as time served on that sentence. On 18 November 2015 you were sentenced to a further
4 months' imprisonment by the same magistrate. Such sentence was ordered to be served concurrently with the sentence of 15 months. The offending dealt with in the Magistrates' Court included two further charges of driving without a valid licence, dishonesty offending, other driving matters, intentionally causing injury and assault.
14 Your counsel outlined your personal history, which was also referred to in a psychological report from Miriam Brookens, dated 25 March 2015, which I infer was prepared for the hearings in the Magistrates' Court.
15 At number of family members including your mother and father and partner attended court to support you and several members of your family are here again today.
16 You are 25 and were 24 at the time of the offending. I accept your counsel’s submission that you should be treated as a youthful offender, although of course your prior history is important.
17 Your parents separated when you were 8. Life was difficult for you after this and because of your mother’s depression, you and your siblings were left to largely fend for yourselves until your mother re-partnered when you were 12.
18 You had a limited education and found school difficult. You were expelled in year 8. You were tested for ADHD but not formally diagnosed.
19 You were employed in an abattoir between the ages of 15 and 18, ceasing that employment because of a back injury. Since that time employment has been intermittent, including work as a truck jockey and more recently you have worked with your step-father.
20 You suffered trauma in a motor cycle accident when 17 and a subsequent car accident, when you were a passenger.
21 Your counsel emphasised the fact that the motivation for your offending was to obtain money and goods to support your family. You and your partner have a 2-year-old daughter, with a second child, a son, due next month. I accept that concern about your family and inability to provide for them will make your time in prison more difficult.
22 You have been a long term cannabis user and told Ms Brookens you have used illicit drugs excluding inhalants and heroin or intravenous drugs. You also told her that you have abused alcohol. However, in more recent years you said you no longer experiment with other illicit drugs or use alcohol heavily. Of course, as noted, you told your counsel you were using ice at the time of the current offending.
23 Mr Brookens thought you suffered from stress related disorders and had developed depressive symptoms. She thought you had little guidance during childhood learning periods. Some material suggested you functioned in the borderline range of intellectual disability. She thought the question of whether you suffer deficits due to an Acquired Brain Injury should be investigated. She recommended a number of psychological treatments including medication.
24 A reference from your partner’s mother was tendered. She thinks your ice use turned you into a completely different person. Now that you are in prison she thought you had returned to “the lovely family man he should be”.
25 Your rehabilitative prospects seem to be dependent on your ability to remain drug free. I am guarded about your prospects, as the prosecutor submitted I should be.
26 The offending is clearly serious, particularly the armed robbery. You were on bail at the time of the offending as noted by the prosecutor.
27
You are currently due for release, concerning the total effective sentence of
15 months imposed in the Magistrates' Court, on 25 September this year.
28 I am conscious of the principle of totality [Morgan 2013 VSCA 33] but in my view the sentence I impose should be served cumulatively on the sentence you are currently undergoing.
29
On charges 1, 2 and 3, theft of the number plates, armed robbery and obtaining by deception respectively, you will be convicted and sentenced to
an aggregate term of 3 years and 9 months' imprisonment.
30 On charges 4 and 5, burglary and theft, you will be convicted and sentenced to an aggregate term of 4 months' imprisonment.
31 On summary charge 5, possessing a controlled weapon, you will be convicted and discharged.
32 On summary charge 17, drive whilst authorisation suspended, you will be convicted and sentenced to 3 months' imprisonment.
33 The aggregate sentence on charges 1, 2 and 3 is to be the base sentence. I order that only 2 months of the aggregate sentence on charges 4 and 5, and only 1 month of the sentence on summary charge 17 be served cumulatively on the aggregate sentence on charges 1, 2 and 3 and on each other. That makes for a total effective sentence of 4 years imprisonment. I fix 2 years and 6 months as the period you must serve before being eligible for release on parole.
34 As noted earlier, this sentence is to be served cumulatively on the sentence you are currently undergoing.
35
Had you not pleaded guilty I expect I would have sentenced you to about
5 years and 3 months' imprisonment and fixed a non-parole period of about
4 years.
36 Is there anything arising out of those remarks that counsel can identify?
37 MS WALTON: Not in relation to that, Your Honour. There is the issue with the licence with the theft of the truck.
38 HIS HONOUR: I think we discussed the other day that I need to cancel the licence for the charge of - - -
39 MS WALTON: Charge 5, Your Honour, the theft of the truck.
40 HIS HONOUR: Yes, I just hesitated because somebody rudely stormed out of the court. But I am at liberty to impose whatever [period] I think is appropriate. I propose to cancel any licence held by Mr Caldwell and disqualify him for a period of three months.
41 MS WALTON: As Your Honour pleases.
42 MR LESLIE: As Your Honour pleases.
43 HIS HONOUR: You will have to return to custody, Mr Caldwell. I will adjourn the court, thank you.
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