R v Searle
[2013] VCC 1824
•15 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN SEARLE |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 October 2013 | |
CASE MAY BE CITED AS: | R v Searle | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1824 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Lewis | |
| For the Accused | Mr D. Cronin |
HIS HONOUR:
1 Damien Allan Searle, you have pleaded guilty to four charges of theft, one charge of burglary, one charge of attempted theft and one charge of armed robbery. The facts of the case are set out in the opening of the prosecution, which is Exhibit 1 on the plea. It is not disputed by the defence. It is the factual basis upon which I have sentenced. Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.
2
You have admitted your criminal history which, from 2003 onwards, contains amongst other offences numerous offences of dishonesty, the last being on 23 August 2010 at the Warrnambool Magistrates' Court for theft of a motor vehicle and another count of theft and fraudulently use a vehicle identifier, for which you received a sentence of two years and one month with a
non-parole period of 18 months. Your co-accused, I am told, is going to trial. A victim impact statement was tendered for Mr Robbins, the victim in the armed robbery. I have read that and considered its contents. The prosecutor submitted that a range I should look at would be a head sentence of five and a half to four years with a non-parole period of four to two and a half years. I have signed compensation orders.
3 On your behalf your counsel, Mr Cronin, made a number of submissions. He submitted that it was a serious offending. He told me that, through a family connection, you subsequently realised that you had a connection with Mr Robbins but at the time you didn't recognise it. He said the crimes were committed under the influence of drugs, namely the drug speed. He said on this weekend you had decided to stop taking drugs but wanted to do a "last hurrah", so you took a large amount of speed. It seems a very unusual way to try and stop using drugs, by taking a lot of them, but that is my opinion. Mr Cronin told me you were foggy and disjointed during the commission of the crimes. He said there was really no reason for any of it. It was an unrealistic survival-type exercise, he said.
4 He pointed to your plea of guilty and confessional statement. He said since the age of 16 you have been in a revolving world of drug use through the use of cannabis and amphetamines. He submitted I should consider a longer parole period, somewhere down towards the end of the prosecution range. He pointed to you saying in your record of interview at p.123, "I'm ashamed of my actions towards the old bloke," which refers to Mr Robbins.
5 Your father gave evidence, Rodney Searle. He is a truck driver. He told me that your mother had left the family at the age of 18 months and you did not see her again until you were around 18 or 19 and, when you met her, that it was a disaster because she was a drug-affected person. You were raised by your father. At one stage you went to Queensland when you were about six or 18 months and, during that episode of your life, unfortunately you were sexually abused. Counsel told me in fact you had been to 18 different primary schools, had a disjointed upbringing, dropped out of school when you were 14 and took a job as an apprentice carpenter and had an interest in boxing.
6 At the age of 16 when you had moved back to your family, you had to leave because of your cannabis use. You currently have a partner, Leticia, who is at court. She, I am told, has no criminal convictions and is prepared to support you. Your father told me that, in talking about this offence, subsequently you were in tears and expressed shame about what you had done. He said that you were good with machinery. You had worked in a tree-felling business and mowed lawns for your grandfather. A reference was tendered from Tree Pro, an employer in the area who can offer you work after your release. There was also testament from your grandfather and your father and I have taken those into account.
7 You have five children, ages between three to ten. The four eldest you have very little contact with. You have been seeing your youngest, who is three, but that has been difficult since you have been in custody. Your intention is ultimately to try to reconnect with your children. Of course that will depend on you rehabilitating yourself. Mr Cronin thought that was a motivating factor for you to stop using drugs. Since the offending he told me you actually had been admitted as an involuntary patient at Warrnambool Hospital at Ward 9 for a drug psychosis. He told me that you have discovered religion through your partner and that that is another aspect of life you are considering. He submitted that you had a long road ahead with your drug and alcohol problems, but you have the support of your family and your partner.
8 He said in relation to the armed robbery it was not premeditated. He put to me that there was some reason for hope; that is you had hopeful prospects of rehabilitation. That is why he submitted that you should be given a longer parole period.
9 Sentencing considerations: I have taken into account the provisions of ss.5(1) and (2) of the Sentencing Act, taking into account all the submissions of both counsel and the exhibits tendered, including any not specifically referred to in these reasons. The important sentencing considerations here are general deterrence, specific deterrence and the court's denunciation of your behaviour. You have probably heard all this before but I will say it again. General deterrence is an attempt by the court to try and get the message across to anyone else who wants to do this sort of thing that the consequences in court for it are periods of time in custody. Specific deterrence is to try and stop you doing it again and the court's denunciation of your behaviour is what I think of it all.
10
Over two days you indulged yourself in a drug-fuelled mini-crime rampage. Your drug use is no excuse for your behaviour. The armed robbery upon
Mr Robbins, a person who was kindly assisting you, was frightening and threatening. Holding a boning knife to someone's throat is appalling behaviour. You have since expressed shame to your father for your behaviour, but clearly at the time you had no regard for Mr Robbins' safety and health.
11
Specific deterrence is a factor here because of your criminal history. Approximately a year earlier to this offending you had finished 18 months on parole. You do not seem to have benefited from that parole period. Your counsel submitted you have prospects of rehabilitation: you have a new,
law abiding partner who supports you, you have the support of your father and grandfather, you have some work skills, there is a job waiting for you. It is really up to you to turn your life around, to stop using drugs, reconnect with your children and become a productive member of society.
12 If you do not, your future is bleak: drug addiction, prison, probably a short life span. You should stop and consider what effect your criminal activities has upon the victims. I find it hard to assess what prospects of rehabilitation that you have, but an assessment of your past life is a discouraging one. Taking into account your plea of guilty and your cooperation with the police, the plea of guilty saves the court time and expense of a criminal trial and as an acceptance of responsibility for your actions by you; you have been given the appropriate discount. You expressed remorse to your father.
13 Taking into account your current circumstances and your past background, I consider that I can sentence you under s.9(1) of the Sentencing Act because over two days your criminal activity forms a series of conduct of the same or similar type. So I impose an aggregate sentence of five years. I declare that you receive a period of three years before being eligible for parole. I declare under s.18(1) of the Sentencing Act at the time of 126 days you have already in custody be reckoned to be time served as part of the order I have just made. I declare under s.6AAA of the Sentencing Act that, but for your plea of guilty, you would have received a sentence of eight years with a non-parole period of six.
14 Any other orders I need to make apart from the outstanding compensation order?
15 MR CRONIN: No, Your Honour.
16 HIS HONOUR: All right, Mr Cronin. Could you remove Mr Searle, please. That compensation order is sorted out. Bring it up some time this week.
17 MR CRONIN: Yes, Your Honour.
18 HIS HONOUR: All right. What are we doing tomorrow?
19 MR CRONIN: There are three sentence appeals tomorrow, Your Honour, as I understand it.
20 HIS HONOUR: All right. I adjourn the court until 10 o'clock tomorrow.
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