R v Sharp
[2013] VCC 2218
•23 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TAI SHARP |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 21August 2013 | |
DATE OF SENTENCE: | 23August 2013 | |
CASE MAY BE CITED AS: | R v. Sharp | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2218 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Theft – burglary – armed robbery – make threats to kill – attempt to commit an indictable offence – young offender
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 2 years' imprisonment, minimum term 1 year
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr S. Howe | Jeremy Harper & Associates |
HIS HONOUR:
1 Tai Sharp, you have pleaded guilty to two charges of theft, one charge of burglary, one charge of armed robbery, four charges of making threats to kill and one charge of attempt to commit an indictable offence.
· Theft carries a maximum penalty of 10 years' imprisonment;
· Burglary carries a maximum penalty of 10 years' imprisonment;
· Armed robbery carries a maximum penalty of 25 years' imprisonment;
· Making threats to kill carries a maximum penalty of 10 years' imprisonment;
· Attempt to commit an indictable offence when that offence is armed robbery carries a maximum penalty of 20 years' imprisonment.
2 You are aged 20, having been born on 6 October 1992 and you were that age at the time of the offending.
3 The circumstances of your offending are set out in more detail in the prosecution summary tendered as Exhibit “A”. I incorporate those facts into my sentencing finding and reasons.
4 In essence, you participated as one of three males committing a series of offences in Ballarat over the night of 10 November and into the early hours of 11 November 2012.
5 On the night in question, first, a registration plate was removed from a random vehicle parked in the street and secured onto the car of one of your co‑accused. This activity is represented by charge 1, theft.
6 Next, you drove to a street in Ballarat where your co‑accused Wakelin identified a house suitable for a burglary. You and Wakelin broke into the house and stole a variety of goods including a television, a laptop computer, jewellery, bank cards, a watch and a mobile phone. This conduct represents charges 2 and 3, being burglary and theft.
7 Next, the car was driven to where a hapless individual was spotted in the street. He was injured and intoxicated. You and Wakelin left the car and approached the man, Wakelin wearing a bandana and armed with an imitation firearm. The man was confronted with the imitation weapon. The man either fell over or was tripped and his mobile phone was then stolen. You and Wakelin returned to the car where the car was driven on. This conduct is represented by charge 4, armed robbery.
8 Next, the vehicle pulled up near a group of four young people where you and Wakelin then confronted that group, Wakelin again with the imitation firearm. The group were threatened with various phrases threatening to fire a bullet. This conduct represents charges 5, 6, 7 and 8, threat to kill. Again, you left, the car being driven away by your co‑accused.
9 Finally, the car was driven to where another man was confronted in the street, again by you and Wakelin. He was told to hand over his phone, however he refused and you and Wakelin then backed off and returned to the car, which was then driven off. This conduct is represented by charge 9, attempt to commit an indictable offence, that offence being armed robbery.
10 Your participation was, in company with Wakelin, entering and stealing from the house and confronting and stealing from the various victims, including the attempt to steal on the final victim.
11 I now turn to your personal circumstances.
12 As I noted earlier, you are now aged 20 and you were that age at the time of the offending. You will be 21 in just over six weeks’ time.
13 You have an extensive criminal record for one so young, commencing at the Children's Court when you were just 15. Your prior offending has included thefts, burglary, assaults, road traffic violations, damaging property, retaining stolen goods and being a public nuisance.
14 Your penalties began in the Children's Court from April 2007 and you have re‑offended every year since then through until the current offending in 2012. The penalties imposed have ranged from undertakings without conviction to be of good behaviour, fines and youth supervision orders. I note that you were sentenced to 12 months' detention in a Youth Training Centre in 2011, successfully appealed that order on 6 October 2011, and were sentenced to four months at a Youth Justice Centre, together with a community‑based order for two years.
15 The current offending breaches that order and I note from the Corrections report that the order has also allegedly been breached by other offending and unacceptable absences from supervision.
16 Over the years you have had the benefit of rehabilitative programs designed to address your drug and alcohol and psychological difficulties, however you keep regularly reoffending.
17 A number of documents were tendered on your behalf on your plea. These are exhibited as Exhibits 1 to 11.
18 From the material submitted it is clear that you have had a very unfortunate and disadvantaged past and continue to be affected by those experiences, as well as your intellectual disability. You are currently in receipt of a disability support pension in the context of your assessed intellectual impairment. Your innate difficulties mean that you are vulnerable to drug and alcohol misuse and susceptible to the influence of others. I am satisfied that these issues affected your ability to make a calm and reasoned decision whether to engage in the criminal offending, particularly being the influence of others.
19
Dr Cunningham notes that you present as motivated to engage with treatment and the workforce and you have stable accommodation.
20 You have participated in counselling with Mr Gerry Egan, psychologist, over eight sessions since December 2012. He reports that you have presented in a manner consistent with your claim that you have reduced your drug taking. Mr Egan also asserts that you have made significant efforts to rehabilitate yourself and have potential to mature and make some contribution to society.
21 Your mother has provided a helpful account of your early years and the deprivation you have had as a child and growing up without any worthwhile father figure. You were subjected to violent as well as sexual abuse.
22 The further reports are consistent with your current condition and underlying personality disorder with accounts of depression and anxiety. You were commenced on a mental health plan by your medical general practitioner in November 2012.
23 You have been in a relationship with a partner with whom you have had two children. You recently separated and you are anxious to remain a close father and care for them. Your ex‑partner's mother has referred to your good qualities as a father as also has a friend, a Ms Smithers.
24 The criminal activity in which you engaged last year is obviously serious and to be deplored. The violation of people's homes causes great distress and all citizens should be able to feel safe walking the streets at night. Threatening a victim with a weapon, even an imitation weapon, is an extremely frightening and traumatising act.
25 Your conduct has the further effect of causing anxiety and fear to others in the community who read about such activity. The public should not be expected to tolerate such behaviour and the courts must respond by appropriate denunciation and punishment.
26 In mitigation I take into account:
· your plea of guilty and the time it was indicated,
· your cooperation with the police investigation,
· your mental health, including your intellectual disability and underlying depression, anxiety and alcohol and drug misuse,
· your attempts at reducing your drug and alcohol use,
· your attendances at counselling with Mr Egan,
· the very disruptive experiences and influences in your early development, and
· the good character you have shown in your concern as a father.
27 Your position in sentencing is to be distinguished from that of your co‑offender, the driver of the vehicle, who was recently sentenced by me in this court, in that you have an extensive and regular past criminal record whilst he had none, his level of cooperation with the authorities was more significant and his role in the offending was less culpable.
28 You are now at an age where you can be considered for imprisonment in an adult prison. Ordinarily, having regard to the seriousness of the offences in which you engaged, an offender should expect a sentence of imprisonment to be immediately served and for a significant period.
29 Whilst therapeutically there may be advantages in you continuing to have rehabilitative treatment whilst remaining in the community, your background of previous offending, your responses to previous court orders by in fact reoffending, and the objective seriousness of the current offending combine, despite moderation for your mental health and other mitigating circumstances, to require a sentence to be served in custody. Because of your youth and vulnerability in an adult prison environment I requested that you be assessed for suitability for detention in a Youth Justice facility.
30 I have now received that report and it is not favourable. You have been assessed as unsuitable for the following reasons:
· the offending included violence against persons;
· there was a perceived lack of responsibility for the offences shown to the author of the report;
· your offence history, including some violent offending;
· a previous incident when in Youth Justice detention where you had to be transferred to a secure unit;
· your limited pro-social peers and family support;
· a perceived, by the author of that report, minimal motivation to seek employment and education;
· your age, which is at the upper range for eligibility for a Youth Justice sentence.
31 As a result you fall to be sentenced to an adult prison.
32 I emphasise that in sentencing you as I am I have, in particular, moderated the sentences for individual offences as well as the total effective sentence to give full effect to your youth, both for your rehabilitation and vulnerability and your intellectual disability. I accept that your intellectual disability reduces to some extent your culpability for offending and that a sentence in custody will be more onerous for you than upon a person in good health. I also accept that the charges of theft relating to the burglary are very much incorporated into the one incident.
33 I also indicate that in arriving at the total effective sentence that I have, I have allowed for a shorter non‑parole period than I otherwise would have directed in order to allow for more extended supervision of your parole, should that be granted.
34 Under the serious offender provisions of the Sentencing Act, on your conviction and sentence to a term of imprisonment on a violent offence charge I am required on the violence offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than that is proportionate to the gravity of the offence. This means that the sentencing task in respect of charges 6, 7 and 8 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offences, considered in light of the objective circumstances. However, because of the circumstances and mitigating factors in your case I do not propose to do so.
35 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to charges 6, 7 and 8, the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered. I note here that the Crown did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
36 Mr Sharp, would you now please stand.
37 On charge 1 of theft of a number plate you are convicted and sentenced to two months' imprisonment.
38 On charge 2 of burglary you are convicted and sentenced to nine months' imprisonment.
39 On charge 3 of theft of the items stolen as a result of the burglary, you are convicted and sentenced to six months' imprisonment.
40 On charge 4 of armed robbery you are convicted and sentenced to one year's imprisonment.
41 On each of charges 5, 6, 7 and 8, threat to kill, you are convicted and sentenced to six months' imprisonment.
42 On charge 9 of attempt to commit an indictable offence, being armed robbery, you are convicted and sentenced to six months' imprisonment.
43 Charge 4 is the base sentence.
44 I direct that one month of the sentence imposed on charge 1, four months of the sentence imposed on charge 2, one month of each of the sentences imposed on charges 5, 6, 7 and 8 and three months of the sentence imposed on charge 9 be served cumulatively upon charge 4 and upon each other. I make no order for cumulation on charge 3.
45 The total effective sentence is two years' imprisonment.
46 I direct that you serve a minimum period of 12 months in custody before being eligible for parole.
47 I also direct pursuant to s.6F of the Sentencing Act that it be entered into the records of the court that I have sentenced you in respect of charges 6, 7 and 8 as a serious violent offender within the meaning of that Act.
48 For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is a term of imprisonment of three years with a non‑parole period of two years.
49 You may be seated for the moment, Mr Sharp. At the plea hearing the prosecution sought an order for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order was consented to and the making of the order is in the public interest.
50 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Sharp?
51 PRISONER: Yes.
52 HIS HONOUR: At the plea hearing the Crown also sought a forfeiture order as to the imitation long arm to which you also consented and I have also made that order today.
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