R v Vaughan
[2017] ACTSC 270
•30 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vaughan |
Citation: | [2017] ACTSC 270 |
Hearing Date: | 29 August 2017 |
DecisionDate: | 30 August 2017 |
Before: | Burns J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – co-offender – replica shotgun – co‑offender expressed willingness to give evidence at trial – plea of guilty – significant criminal history – drug addiction – proposition that counsel acting for an accused person cannot take instructions and provide advice without having seen the Crown brief rejected – degree of remorse – reduction for plea of guilty – prospects for rehabilitation guarded – capable of rehabilitation if address drug abuse and make necessary changes – culpability somewhat higher than co-offender – general and specific deterrence – serious offence – term of imprisonment imposed |
Legislation: | Criminal Code 2002 (ACT) s 310 |
Parties: | The Queen (Crown) Dean Vaughan (Offender) |
Representation: | Counsel Mr M Fernandez with Ms T Skvortsova (Crown) Mr J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) | |
File Number: | SCC 216 of 2016 |
BURNS J:
Dean Vaughan, you have pleaded guilty to one offence of aggravated robbery which occurred on 30 June 2016. The maximum penalty for this offence, contrary to s 310 of the Criminal Code 2002 (ACT) is 25 years imprisonment, a fine of $375,000, or both.
On the morning of 30 June 2016, your co‑offender, Dwayne Goward, drove a Ford Falcon from Queanbeyan, New South Wales (NSW) to Tennant Street, Fyshwick in the Australian Capital Territory (ACT). This was observed by police conducting surveillance duties. At the same time you drove a motorcycle from Queanbeyan to the same area in Tennant Street, Fyshwick. You took possession of a replica modified shotgun from the Ford Falcon. Your co‑offender then drove the motorcycle with you as a pillion passenger to a driveway on Townsville Street in Fyshwick. You dismounted the motorcycle and walked towards the Fyshwick Post Office on Townsville Street. Meanwhile, your co‑offender turned the motorcycle around so that it was facing towards Townsville Street. These actions were also observed by police conducting surveillance duties.
At about 9.25 am you entered the post office wearing a black hooded jumper with the hood pulled over your head, a dark-coloured balaclava, black tracksuit pants and black shoes. You were in possession of the replica shotgun and a beige fabric bag. You approached the counter and threw the bag towards an employee of Australia Post. However, the bag fell onto the ground. You picked the bag up from the floor and placed it on the counter. You then told an employee to fill the bag up. Money was taken from three cash registers.
It appears that at least two employees and one customer were present in the office whilst this robbery took place. You stole a total of $1,120. Once the money had been placed into the bag you left the store, placing the modified replica shotgun down your pants, and you ran towards your co‑offender, who was waiting on the motorcycle. You mounted the motorcycle as a pillion passenger and the two of you rode away.
A short time later, police observed you standing beside the Ford Falcon on Tennant Street, Fyshwick with your co‑offender seated on the motorcycle. As police approached it is alleged that you pointed the firearm at police before again mounting the motorcycle as a pillion passenger and fleeing the area with police in pursuit.
You gave evidence at the sentence hearing that you had not deliberately pointed the replica firearm at police, which was not seriously challenged. I will proceed on the basis that you did not intentionally point the replica firearm at police. The pursuit occurred in both the ACT and NSW. At one point, your co‑offender got off the motorcycle and you took over riding it. Subsequently, the police pursuit continued with you alone on the motorcycle, however, police eventually lost sight of you.
You were subsequently arrested by police in Queanbeyan that day. Your co‑offender was also arrested in Queanbeyan. On 1 July 2016, you first appeared in the ACT Magistrates Court and you were charged with aggravated robbery. On 5 July 2016, you and your co‑offender declined to participate in interviews with police, identification parades and forensic procedures. On 22 September 2016, you were committed for trial to this Court on the charge of aggravated robbery.
On 17 November 2016, the Crown filed an indictment jointly charging you and your co‑offender with the offence of aggravated robbery. On 12 December 2016, the matter was listed for trial, commencing 13 June 2017. On 21 February 2017, your co‑offender pleaded guilty to the charge of aggravated robbery. He participated in a taped record of interview with police on 16 May 2017 in which he implicated you in the aggravated robbery. At your co‑offender's sentence hearing on 9 June 2017 he undertook to give evidence at your trial in accordance with the information he had provided to police on 16 May 2017, if called upon to do so.
It is apparent that you became aware of the information which had been provided to the authorities by your co‑offender, of his plea of guilty to the charge of aggravated robbery and of his expressed willingness to give evidence at your upcoming trial. It is not clear when you became aware of these matters, but I am satisfied it was before you, through your legal representatives, notified the Crown of your intention to enter a plea of guilty to the charge of aggravated robbery on 7 June 2017. Later on 7 June 2017 you were arraigned at a pre‑trial callover and you entered a guilty plea to the single charge on the indictment.
On 15 June 2017, I sentenced your co‑offender to a period of two years and six months imprisonment for that offence of aggravated robbery. The starting point in imposing that sentence was one of four years imprisonment, which I reduced by eight months in order to reflect his plea of guilty. This equates to a reduction of approximately 17 per cent for his plea of guilty. I then further reduced the otherwise appropriate sentence by a further 10 months in order to reflect his assistance to the authorities. This resulted in a sentence of two years and six months imprisonment.
You have a significant criminal history which disentitles you to any leniency in sentencing for the present offence. I note that your co‑offender also had a very significant criminal history. There is no reason, based upon your respective criminal histories, for me to distinguish between yourself and your co‑offender in sentencing for this offence.
I take into account the contents of the Pre‑Sentence Report dated 13 July 2017. The Report states that your compliance at the Alexander Maconochie Centre (AMC) has been less than satisfactory. You gave evidence at the sentence hearing explaining these infractions, which I accept and I do not give those matters significant weight in sentencing.
You were born in Sydney and you had a positive childhood which does not appear to have been affected by any abuse or neglect. In your evidence you accepted that your childhood experiences were not responsible for you developing a criminal lifestyle. Your parents are apparently employed as correctional officers in NSW and you presently have a good relationship with them and they are willing to support you upon your release from prison. This has not always apparently been the case, and I will return to that in a moment. I note that you are a single man with no dependents.
In April 2015, you were sentenced to terms of imprisonment in the ACT Magistrates Court. As I understand it, at the time that you committed the offences for which you were sentenced in April 2015, you were subject to a parole order in NSW. You were released from custody in the ACT in February 2016, at which time you were immediately returned to Goulburn, NSW to serve the remaining four months of your parole order.
You gave evidence that while you were serving your sentences in the ACT and NSW you were treated with methadone, but you were released from Goulburn without any arrangements in place to continue this treatment. You further testified that no arrangements had been made for accommodation for you before you were released from Goulburn.
You testified that you returned to Canberra using a $300 crisis payment you had been given when released from Goulburn and attempted to apply for government benefits. You were unable, however, to produce a sufficient identification, leaving you homeless and without income. The present offence occurred about four weeks after you returned to the ACT.
I will proceed on the basis that this account given by you is correct, but in my opinion it does not significantly mitigate the sentence which is appropriate for this offence. You gave no evidence of what steps you took to try to remedy the difficulty in which you found yourself. It is apparent that you almost immediately returned to the use of illicit drugs, using up to $100 worth of methylamphetamine a day in the period leading up to the commission of this offence.
You were provided with that drug by your co‑offender without immediate payment and I have no doubt that part of your motive for engaging in the present offence was to reimburse your co‑offender and to secure money in order to purchase further drugs in the future. It may well be, as you said, that you intended to use some of the money to find secure accommodation, but it would be unrealistic to suggest that this was your main motivation.
You have been able to maintain employment in the past in unskilled labouring positions. Your parents are willing to support you upon your release from prison, including assisting you in finding employment as a builder's labourer.
You commenced using amphetamine at age 13, initially once or twice a week, but by the age of 15, you reported that you were a daily intravenous user. You also commenced using heroin at about 14 or 15 years of age. You claimed that you stopped using amphetamine at the age of 22 when you started using methamphetamine. You reported weekly use of methamphetamine between the ages of 22 and 29 and daily use of heroin between the ages of 24 and 25. You have also abused cannabis regularly over many years. It is clear that you have a very significant drug addiction which requires addressing. You are currently subject to pharmacotherapy.
In assessing the significance of your drug addiction to sentencing I take into account that you commenced drug use at a very early age. The Pre-Sentence Report notes that you currently have no mental health issues, although you were affected by the death of a cellmate in the AMC in May this year. You gave evidence that you assisted in trying to resuscitate that inmate and that the death of that inmate caused you distress.
You reported that you have re-engaged with your psychologist from the violent offender therapeutic program, maintenance and outreach within NSW Corrective Services and you engage in fortnightly phone counselling sessions. You gave evidence that you are willing to participate in the Solaris drug rehabilitation program in the AMC and the Pre‑Sentence Report notes that you are attending one‑on‑one counselling with Directions health service in the AMC.
You told the author of the Pre-Sentence Report that you started using illicit substances almost immediately after you were released from Goulburn and that you had used methamphetamine prior to committing the present offence. The author of the Report stated that your potential for living in a prosocial manner within the community may improve if you were to make a concerted effort to address your drug abuse. You were assessed as at medium to high‑risk of general reoffending primarily due to your lack of employment, drug use, lack of prosocial leisure activities and antisocial attitudes. If you were to genuinely engage in programs and counselling and make significant changes to your lifestyle this risk may reduce.
Your counsel submitted that your plea of guilty should be treated as a relatively early plea because you were not provided with the full Crown brief until shortly before you entered your plea. I reject that proposition. This was not a complicated prosecution. You knew full well what you had done and you were capable of instructing your lawyers and communicating to them what you had done and, if necessary, obtaining advice from them about the courses of action available to you. You knew full well that you had committed this aggravated robbery and you were capable of instructing your lawyers at any time that you wished to enter a plea of guilty.
I reject entirely the proposition that counsel acting for a person such as yourself cannot take instructions and provide advice without having seen the Crown brief. Such an approach speaks of a lack of remorse and a plea necessitated by the strength of the Crown case. There is a real risk that if such an approach is adopted the offender will lose much of the benefit of demonstrated remorse in the sentencing process. It is incumbent on counsel representing accused persons, absent unusual circumstances such as complete lack of memory on the part of the accused, to take instructions from their client as to what their client said occurred and to provide advice to their client accordingly.
You gave evidence of remorse during the sentence hearing. You also gave indications of remorse to the author of the Pre-Sentence Report. Had there been an early plea of guilty this would have significantly supported these relatively recent expressions of remorse for your offending. As it is, it is difficult to judge the extent to which you are truly remorseful for this offence. On balance, and taking into account the steps that you have taken in the AMC to reconnect with the NSW Violent Offender Therapeutic program, I accept that you have a degree of remorse for this offence and I also accept that you have an understanding of how your conduct is likely to have affected your victims.
While your plea of guilty was a late plea it nevertheless had utilitarian value. It came at a much later stage than the plea of guilty by your co‑offender. I will reduce by 10 per cent the otherwise appropriate sentence in order to reflect your plea of guilty. If you had entered an early plea of guilty with respect to this charge you could have expected a reduction of approximately 25 per cent of the otherwise appropriate sentence.
Your prospects for rehabilitation must remain guarded. While you have expressed a desire to undertake rehabilitation and to change your lifestyle, this is yet to be put to the test, particularly in the community. Your extensive criminal history, the rapidity with which you returned to illicit drug use after you were released from Goulburn and your willingness to return to similar serious offending so soon after release are all indicators that your professed desire to rehabilitate must be treated with caution. That is not to say that you are incapable of rehabilitation. Clearly if you determine to address your drug abuse and to make the necessary changes to your life to avoid further offending, you are capable of rehabilitation.
Your counsel submitted that I should not find that your culpability for this offence was any greater than that of your co‑accused. He submitted, quite correctly, that this was a joint enterprise in which each of you had participated knowing that an aggravated robbery was to be committed. I do not accept, however, that the fact that this was a joint enterprise means that there was no distinction to be drawn between the culpability of yourself and your co‑offender based upon your relative roles in the offence.
In my opinion, your culpability with regard to this offence is somewhat higher than that of your co‑offender. You were the instigator of the offence, albeit that your co‑offender readily agreed to join in. You are the person who entered the Australia Post Office while your co‑offender remained outside waiting to drive you away. You were the person who carried the replica firearm which was used to threaten the staff at the post office.
I accept that you did not point the firearm at anyone in the post office, but your intention in carrying it into the post office was to scare those within so as to ensure that they complied with your directions. You acknowledged in your evidence that those within the post office were clearly frightened during the course of this offence. I accept, of course, that the replica firearm which you used was incapable of discharging a projectile and as such those employees and member of the public present in the post office were not in danger of being shot. They, of course, were not to know that.
The purpose of carrying the firearm was to make those in the post office believe that it was capable of causing them injury thereby dissuading them from resisting your demands. I accept that no actual threats were made by you in the course of the robbery. The offence, however, is nevertheless a serious one.
As the Crown submitted, both general deterrence and specific deterrence are relevant sentencing considerations. Nothing less than an immediate term of imprisonment will be appropriate to meet the requirements of sentencing for this offence. I have given thought to all other sentencing options, but I am satisfied that nothing less than an immediate term of imprisonment is appropriate.
In my opinion, the appropriate starting point, bearing in mind your relative culpability with respect to this offence, is a sentence of four years and 10 months. I will reduce that by six months in order to reflect your plea of guilty.
Sentence
I record a conviction and you are sentenced to four years and four months imprisonment, commencing on 30 June 2016 and expiring on 29 October 2020. I set a non-parole of two years and 11 months, again commencing on 30 June 2016 and expiring on 29 May 2019.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 20 September 2017 |
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Amendments
9 January 2018 Cover page: insertion of ‘with Ms T Skvortsova’ after ‘Mr M Fernandez’.
23 October 2017 Paragraph 9: the second sentence insert the words “plea of” before the word “guilty”.
Cover page:insertion of line ‘Legislation: Criminal Code 2002 (ACT) s 310’; insertion of line ‘Canberra Criminal Lawyers (Offender)’.
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