R v Mulry

[2014] VCC 1845

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

AT BENDIGO

CRIMINAL DIVISION

Case No. CR-14-01037

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL MULRY

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Bendigo
DATE OF HEARING:	31 October 2014
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	R v Mulry
MEDIUM NEUTRAL CITATION:	[2014] VCC 1845

REASONS FOR SENTENCE
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Subject:  
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Cases Cited:            
Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Jassar	OPP Victoria
For the Accused	Ms J. Munster	VLA

HIS HONOUR:

1       

Paul Mulry, you have pleaded guilty to one charge of armed robbery.  You have also pleaded guilty to a summary charge of using a drug of dependence, namely methylamphetamine, between 21 November 2013 and

13 March 2014. 

2       The armed robbery occurred on 12 February 2014.

3       The prosecutor, Mr Jassar, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’ which was tendered.

4       In short, you robbed employees at a Nando's outlet in Bendigo using an imitation firearm.  You obtained about $2,300 in total.  This consisted of takings as well as money in a safe.  You prepared for the crime by purchasing a white painter’s jumpsuit, latex gloves, a balaclava, as well as the imitation firearm, and a pencil case into which you later put the money.  You attended the store at about 10.00 pm and waited for it to close before confronting staff.

5       The victims declined to make victim impact statements but the impact on them must have been considerable.

6       After obtaining the money you fled and ran to a nearby park where you disposed of incriminating items and stored the money.  You then pretended to be a jogger.  You returned to collect the money at about 4.00 am the next day.

7       Your motivation was to pay a drug debt of $1,700.  You had been given an ultimatum by your dealer and you feared him.  After paying off your debt you spent the residue on food, phone credit, Myki credit and drugs.

8       You had separated from your wife in September 2012 and were estranged from your young children since March 2013 and had quit your job at a bank, resorting to drugs and alcohol to cope with your depression.

9       I was informed that at the time of your arrest the police had no leads concerning your crime and there was every possibility that the crime would go unsolved.

10      Remarkably, on 13 March 2014, you contacted the informant, asked him to meet you, surrendered yourself and may a full confession, assisting the police by explaining all you did.  You appeared genuinely remorseful, demonstrating regret and victim empathy.

11      You have now been in custody since your arrest.

12      You determined to make no bail application recognising that you must be sentenced to imprisonment and decided to get on with your sentence, despite this being your first time in adult custody.  You have been at the MRC since April but before then spent time in cells at Bendigo, then Mildura and finally the MAP.  Time in police cells is usually more onerous than prison.

13      You have made substantial efforts to further your rehabilitation in prison.  You have been drug tested and remain drug free.  You have undergone various courses including conflict and anger management courses.  You have sought to improve your skills to assist with possible employment.

14      You have a relevant criminal history including past offences for dishonesty and violence, first appearing in the Children's court in 2006.  You have been released on undertakings to be of good behaviour, probation and youth supervision orders.  In 2009 you were released on a youth supervision order for armed robbery and other offences.  In 2010 you were dealt with for breaching this order and although the order was varied you were also ordered to be detained in a youth justice centre for two months on charges of burglary and theft.  You were given a youth supervision order at the same time for other relatively minor offending.  Later in 2010 you were once again released on a youth supervision order.  In 2013 you were given a three month suspended sentence for burglary and theft, and other offending, including failing to appear in court.  The current offending breaches this order and you will have to face breach proceedings in the Magistrates court.

15      Your criminal history demonstrates the difficulty you have had in complying with, and taking advantage, of court imposed opportunities in the past.

16      You were only 21 at the time of the offending and are now only 22.  Your youth is an important matter and was heavily relied upon by your counsel.

17      Your counsel sketched your background.  I accept that you have had a disadvantaged upbringing.  Your father abused drugs, separated from your mother when you were about three.  Your mother seems to have had a difficult relationship with her new partner, who pursued the family when your mother left him and sought accommodation in refuges.

18      You were placed in care aged about 11 and lived with many foster carers until aged 17.  There were some periods of stability but I accept that life would have been difficult for you.

19      You struggled at school and were assessed by Disability Services as mildly intellectually disabled with an intelligence level between 57 and 71.  You were referred for services but you did not accept the diagnosis and it seems you were correct.  More recent testing suggests a higher intellectual level.  This is contained in a Forensicare psychological report prepared by Dr Joel W. Godfredson dated 22 October 2014.

20      You have had good periods of employment and ended an 18 month job at an outdoors store to be with your father in Tasmania when aged 17.  However, this was short-lived and you returned to Victoria to be with your mother and her partner.

21      You met your former partner in early 2009.  You began work at a bank as an administrative officer.  You had a child in 2010 and another in 2011.  In early 2012 the relationship broke down.  Your partner moved to Queensland.  You were distressed and devastated and your drug use and depression increased.  You stopped working.  It was in this setting that you committed the offences of burglary and theft and other offences that resulted in the suspended sentence in 2013.

22      After being charged you once again went to Tasmania to reconnect with your father.  You failed to appear in court.  You were able to get work and stabilize and then returned to Bendigo to face the outstanding matters.  You remained in Tasmania for about ten months.  However, after your return you fell back into drug use and that is the context in which the current offences occurred.

23      You have a long history of drug abuse.  You commenced drinking alcohol at 12 and were drinking heavily in the period leading up to the current offending.  You began smoking cannabis at 14 and first tried methamphetamine at 17, increasing your intake after your partner left.

24      You have engaged in violence in the past and have undergone an anger management program, as well as drug and alcohol counselling as part of a Youth Justice Program in the past.  Your unstable developmental history has led to the development of problematic personality traits.

25      Dr Godfredson was of the view that if you were imprisoned you would benefit from a number of programs directed towards offending behaviour, drug taking and anger management.

26      Unless your counsel objects, I intend to provide a copy of Dr Godfredson's report to the prison authorities.  I am conscious that access to any program may depend on your release date.

27      Your sister attended court to support you. I was told that on release from prison you have accommodation with respectable and law abiding friends who have offered to support you.

28      You gave evidence before me, reading from a statement of apology.  This was an unusual stand for an offender to take on a plea hearing.  Of course, you were at risk of being challenged in cross-examination or by me.  I was impressed by your attitude and appearance.  I accept that you currently deeply regret your conduct and are determined to rehabilitate.  You particularly want to be in a position where you can reconnect with your own children.  This is very understandable, especially given your abandonment by your father and lack of parental guidance generally.  I can understand that you wish to do this as soon as possible and this puts you under stress in prison.

29      Of course, your offending is very serious and your counsel concedes that only immediate imprisonment is open.

30      You must benefit from your pleas of guilty.  The intention to plead was made early at committal mention but, of course, your confession and cooperation during interview foreshadowed the later pleas.  Your pleas have utilitarian benefits for the administration of justice but, additionally and importantly, demonstrate remorse and facilitate your rehabilitation prospects.

31      Your case has some unusual aspects.  Your surrender to police in the circumstances you did is a very significant matter.  Attesting to your remorse and determination to make the best of your current incarceration is also unusual.

32      As I stated during submissions ,I think it desirable to assist you to further your rehabilitation as far as that is permissible in all the circumstances.  However, I am not blind to the risks that must flow from your past conduct.

33      Your youth, your surrender to, and cooperation with, police are weighty matters in mitigation of penalty.  Obviously, there are serious risks that you will resort to drugs or violence in the future if under stress.  However, you have had a significantly disadvantaged upbringing and because of your youth, your willingness to face your responsibilities, your determination to rehabilitate, your remorse and victim empathy, I consider that I should do all I can to foster your rehabilitation.  If successful then of course this benefits not just you but the community.  You have had periods in the past where you have been stable and law abiding.

34      At first I was intending to simply impose a sentence of imprisonment reflecting the factors in mitigation and fix a non-parole period that was significantly disparate to the sentence.

35      Your counsel has urged me to take another course.  Namely fix a sentence in combination with a Community Correction Order.  The prosecution did not dispute that this was open.  With this submission in mind I had you assessed to determine if you were suitable for such a disposition, particularly given past breaches of supervisory orders.

36      You were found suitable.

37      With some reservations, I have been persuaded that this suggested option should be tried.  If you are released on parole then you will be subject to supervision both on parole and under the CCO.  If this happens it may be a lengthy period, however, given the risks I consider this appropriate in the unusual circumstances of your case.  Of course, if you breach the CCO you will have to appear before me.  In that sense court supervision is achieved.

38      On the charge of armed robbery you will be convicted and sentenced to two years' imprisonment and subject to a CCO on release from prison.  At first blush this might appear unduly lenient but the special circumstances justify this penalty, in my view.

39      On the charge of using drugs you will be convicted and discharged.

40      I fix 12 months as the term you must serve before being eligible for release on parole.

41      On release from custody, whether on parole or not, I order that you be subject to a Community Correction Order for 18 months.  On that order the special conditions will be that you be under supervision, that you undergo treatment and rehabilitation for drugs, treatment and rehabilitation for alcohol, treatment and rehabilitation for mental health, treatment and rehabilitation for programs to reduce re-offending. 

42      You have served 232 days in pre-sentence detention.  This period is to be reckoned as time already served under the sentence I have imposed.

43      You have consented to me making the disposal order sought and I will make it.

44      The combination of a CCO with a term of imprisonment further complicates the declaration concerning s.6AAA.  However, doing the best I can, had you not pleaded guilty, an assumption that makes no sense to consider in isolation.  However, that essentially is I what I think I must do, I expect I would have sentenced you to at least three years imprisonment and fixed a non-parole period of at least two years. 

45      In short, that means in about four months' time you will be eligible for release on parole. 

46      If you are released at that time, you will be under supervision, either by way of parole and then pursuant to the CCO, for the next two and a half years.  Anything need correcting?

47      MR JASSAR:  No sir, if the court pleases.

48      MS MUNSTER:  Nothing further, Your Honour.  There's no objection.

49      HIS HONOUR:  I'm not sure precisely what the position is when you're released.  Normally when we make a CCO order you are required to appear at a Community Corrections office within 48 hours.  I don't think there's any provision that I could locate that deals with what happens where the order is to become operative after release from prison but obviously, as soon as you are released you are to report to the - - -

50      MS MUNSTER:  Loddon.

51      HIS HONOUR:  Thank you.  You will be provided with the document that sets out the details but it's the Bendigo CCS.

52      MS MUNSTER:  It's the Bendigo CCS, yes. 

53      HIS HONOUR:  At 18-20 St Andrews Avenue, Bendigo,, Victoria.  My associate's just told me that the assessing officer indicated that as you are reaching the time where you're eligible for release on parole, you'll be contacted by Corrections and they'll give you instructions about what you're to do.  All right? 

54      MR JASSAR:  Pardon me, Your Honour.  I thought you would have to sign an order as well. 

55      HIS HONOUR:  I do, do I?  I probably will but is it ready?  Do you mind if I leave?

56      MR JASSAR:  Not at all, Your Honour. 

57      HIS HONOUR:  I will have to sign the order.  I'll come back when it's ready for signing. 

58      HIS HONOUR:  I'll just get the drafts for a moment, thanks.  Can I just look at them please Anthony?  Thank you.  Both the print-out of the record of order and the Community Correction Order print-out, as determined by the computer, indicates that the CCO commences on completion of the parole period, and I think that's correct.  That's what's intended so ordinarily your client would be released on parole and at the completion of the parole period the CCO would become operative.  I did say, I think a moment ago.  I confuse myself.

59      MS MUNSTER:  On release.

60      HIS HONOUR:  That the officers would come and see him, that he was about to be released on parole.  That's not right.  They'd speak to him, I assume, at the completion of the parole period.  Or alternatively, if he's not released on parole, sometime approximate to his release from imprisonment.  So I think that the print-out reads well and correctly but s.44(3) says "The Community Correction Order commences on the release of the offender from imprisonment".  I suppose that must mean release from the sentence of imprisonment, that the completion in this case is the two years. 

61      MS MUNSTER:  Yes.

62      HIS HONOUR:  It's a curious way of phrasing it.  "Or if the offender is released on parole, on the completion of the parole period".  Parole period's got a particular definition in s.55 but I would have thought that the position would be that even if he's not released on parole the order then commences on the completion of the parole period.  That is, the period for which he was eligible to be released on parole so I think the wording is a little curious but I'm not going to get caught up in any of this because it's understood what's intended.  I'll hand the CCO draft down to you.  Can you just check it to make sure I've put everything on it?  And there was no issue with the authorities having access to the report?

63      MS MUNSTER:  No, Your Honour.  That certainly reflects - - -

64      HIS HONOUR:  All right.

65      MS MUNSTER: - - -- the order that Your Honour uttered.  If I might approach Mr?

66      HIS HONOUR:  All right.  If you would please, thank you

67      MS MUNSTER:  Thank you.  Mr Mulry has signed the order.  I've explained to him the conditions and also the consequences of breach.

68      HIS HONOUR:  All right, good.  That's the lot for today.  Sorry for keeping you here.  If you're going back to Melbourne drive safely all of you.  Mr Mulry can go, I think.  Do you want to speak to him further?

69      MS MUNSTER:  I did have a lengthy discussion before.

70      HIS HONOUR:  If you don't want to speak to him the prison officers can take him.  If you do, then he can wait.

71      MS MUNSTER:  We had a lengthy discussion while the order was being prepared and he's just indicated that he doesn't need to speak to me.

72      HIS HONOUR:  Fine.  Then you're free to go with the police officers. 

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