DPP v Claridge, Ben Matthew [2012] VCC 2108 (14 December 2012)

JUDGE:	HIS HONOUR JUDGE LECKIE
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2012
CASE MAY BE CITED AS:	DPP v Claridge, Ben Matthew
MEDIUM NEUTRAL CITATION:	[2012] VCC 2108

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Lewis
For the Accused	Mr X. Barrelly

en Matthew Claridge, you have pleaded guilty to one charge of burglary, one charge of theft, one charge of armed robbery, one charge of possession of a drug of dependence and have agreed to have a summary offence of possess ammunition without a licence determined by me as well. The maximum penalties for the indictable offences are ten years imprisonment for burglary, ten years imprisonment for theft, 25 years imprisonment for armed robbery, five penalty units for the possession of a drug of dependence and 40 penalty units for the summary charge of possess ammunition without a licence.

n agreed prosecution opening was read to the court, which set out your involvement in these offences, and my brief summary is as follows:

n the early hours of Thursday 8 December 2011, you and a co-accused, Travis Carman, drove from Warrnambool to an address in Crossley. You were using your girlfriend's car. You both entered a shed at the rear of the property and Carman forced open the door of a gun cabinet and took a rifle and a shotgun. This constitutes the charge of burglary and the charge of theft.

IIIIIAAAA little later, you and Carman drove to an area near a BP service station in Raglan Parade, Warrnambool. You both then covered your faces with a form of mask and your hands with some form of glove. You then walked about 250 metres to the service station. Carman was carrying a long-armed firearm. You banged on the window of the service station, which caused the attendant, Ms , to come out and investigate. Ms was the sole operator of the business at that time, having only arrived shortly before this to open the station.

BThe two of you then rushed at Ms and threatened her with the firearm, by shoving it in her face. She was then forced at gunpoint into the store by Carman, holding the gun against the middle of her back. She was then told to

get the money and to hurry up. When she opened the till, you both started grabbing the money. The total sum taken was $280 in cash, together with a telephone handset. Carman carried the firearm throughout the offence and appeared to take the leading role, however having viewed the video footage of the incident and re-reading Ms 's evidence in her statement, I am satisfied that you were acting in concert with Mr Carman and took an active and supporting role. After taking the money, you both fled the store. This constitutes Charge 3, the armed robbery.

n 3 February 2012, police executed a warrant on your house and located some six cannabis seeds and two .22 calibre cartridges. These are not alleged to be connected to the theft or the armed robbery, but are the subject of Charge 4, possession of a drug of dependence and the summary offence of possess ammunition without a licence.

n 25 June 2012, police arrested and interviewed you in relation to the burglary, theft and armed robbery charges. You made full admissions to you involvement in each of the offences. These are serious offences, in particular the armed robbery. This offence involved the use of a firearm, which you believed was loaded. There was a degree of planning and preparation, in that you both wore disguises and gloves to try to avoid detection. The offence targeted a vulnerable sole operator of a service station in the early hours of the morning.

am prepared to accept on the material, that Carman was the instigator and took a leading role in the offence and that you were reticent about being involved but being under the influence of Carman and your judgment likely affected by drugs you had taken. You still took an active role in the offences. In mitigation it was put that you had been threatened by Carman with a firearm before the armed robbery and this caused you to participate. This, it was submitted by your counsel, was something less than duress, which would normally provide a defence to the charge, but that it was not intended that you

would change your plea of guilty, but nevertheless, I should accept what you said in your interview to the police about this matter.

s I stated during the course of the plea and argument, I am not satisfied on the balance of probabilities that you were threatened with the firearm, and that that caused you to be involved in the armed robbery.

AAAAAIIIIIOOOAs a consequence of your conduct, the victim has suffered considerably. In her victim impact statement, Ms - the impact statement being Exhibit B, Ms , which - and that statement was read to the court, Ms expressed the terror she experienced by having the gun shoved in her face and the fear that she might be killed and the affect that would have on her children and grandchildren. She also explained how the event has caused her ongoing emotional and psychological turmoil. One could not help but be moved by her description how these events had continued to torment her in the variety of ways in her daily life.

our counsel submitted that there were however some mitigating factors. You have pleaded guilty and I take that into account in your favour. Such a plea saves the community the time and the cost of a trial. And most importantly, in my view, it saved the victim the ordeal of having to give evidence at a trial. I take into account that you did make full admissions to the offences when arrested and the matter has proceeded by way of a hand-up brief.

n you record of interview, you expressed concern about what you had done to the victim and during evidence you gave in this court, about an undertaking to give evidence against your co-accused, you did apologise to the victim who was present and is still present in court. In these circumstances, I am prepared to accept that you have remorse for your actions on this occasion.

our personal history and circumstances were set out in a report by Dr Cidoni, a psychiatrist that was dated 22/9/2012, became Exhibit 1 and I have taken the contents of that report into account.

ou are now 27 years of age. You had a difficult upbringing. Your parents separating when you were only two years of age. You then were brought up and lived with your mother until the age of 14. You spent six months with your father but then returned to live with your mother. Both your parents have been in court, together with a brother earlier and a girlfriend, in support of you during the course of this plea and this sentence and I regard that as a positive sign that you have such support, particularly in light of your potential for rehabilitation.

ou experienced difficulties in schooling and required tutoring in primary school. You left school at the age of 14 and a half, having attained Form 2. Since leaving school you have worked at various jobs which had included working with a butcher at an abattoirs and some milking work.

t the age of 19 you formed a relationship with a young woman and that lasted until you were about 26 years of age. During the course of that union, you had two children, but sadly one died in 2007, when only two and a half months old, from SIDS. This caused your condition of depression, which has been diagnosed to worsen and you have had difficulty coping with that death, as I understand it, since that time. Although that relationship has now ended, you do continue to have access to your other daughter. You are currently in another relationship with a woman who has attended court in support of you and that woman has children of her own.

ince an early age you have abused alcohol and cannabis and more recently morphine, amphetamines and alprazolam. You also have a history of hepatitis C.

s a consequence of a motor vehicle accident in 2011, you suffered a spinal injury around the neck, which has required ongoing treatment. You have also experienced, in recent time seizures, which medical people are still investigating. Dr Cidoni in his report diagnosed you as suffering from a major

depressive disorder that has worsened in the context of your daughter's death and you have associated anxiety. He also said you suffered from significant alcohol and cannabis dependence and other polysubstance abuse and recommended various forms of monitoring and treatment.

n Paragraph 6 of his report, Dr Cidoni said that you have a degree of impulsivity and anger as part of your personality, known as anti-social or borderline traits, although he did not diagnose you as having a personality disorder. He further observed that you face multiple issues in relation to your possible rehabilitation and your substance abuse and mental health issues will need to be addressed to progress you rehabilitation. Finally he expressed the opinion that your depressive disorder will make it more difficult for you to cope in custody and may worsen if it goes untreated.

our counsel submitted that I should take this into account in mitigating punishment in line with the last two principles in the decision of R v. Verdins. I accept this submission and will moderate the penalty I impose to some degree.

ou have admitted before me to prior convictions and some court appearances without convictions being recorded. There are 16 conviction from two court appearances and two matters that were before the court in 2003, when you were fined without conviction. The matters in 2008 involved trafficking cannabis and assault matters. You were sentence to six months imprisonment, but that was to be served by way of an Intensive Corrections Order. In March 2009, you were convicted of recklessly cause injury and assault and fined a thousand dollars.

do note that you completed the Intensive Corrections Order and that you have never been incarcerated before and that you are still a young man. However the offences involving violence, in my view, are relevant prior convictions to my task in sentencing you today.

our counsel informed me that whilst in custody, you have chosen to engage in a number of training programs, which include occupational health and safety, food handling, coffee making, first aid, reading together, adult education in Maths and English, the QUIT program, problem solving in grief, drug and alcohol program and you received a white card, as I understand it, for working on building sites. You have also sought, most importantly, psychological assistance and have received some counselling.

onsidering all these circumstances, I am prepared to accept that you have reasonable prospects of rehabilitation, particularly if you continue to engage in the courses and treatment that will be made available to you in custody. However as well as the matters personal to you, to which I have referred, including your prospects of rehabilitation, I must take into account deterrence, especially general deterrence which is of considerable importance, in my view, in cases of armed robbery.

must also consider the protection of members of the community from you and bear in mind the likelihood of you re-offending. The Sentencing Act calls upon me to manifest the community's denunciation of your conduct and generally impose a just sentence.

he seriousness of your offending, in my view, leaves no alternative but to a period of immediate imprisonment. The offence of armed robbery, committed with a firearm, on a vulnerable victim, being a lone operator at a service station in the early hours of the morning, would normally result in a significant period of imprisonment. However your counsel has submitted that in light of your undertaking before this court, that I should impose a less severe penalty.

he undertaking you gave on oath to the court was to give evidence in accordance with a statement that you provided to the police, which is Exhibit 3. This statement identifies your co-accused in this armed robbery and the other offences and the role that he played. As I am informed,

currently police are seeking to locate, arrest and charge your co-accused and subject to what your co-accused may say in any interview, your testimony against him would be the mainstay of any prosecution case which may be launched.

he law is clear that in determining the appropriate sentence, the court should take into account your cooperation with the prosecuting authorities. The assistance given to them and your undertaking to give evidence in the trial of your co-accused. These are matters which entitle you to a measure of leniency which should be reflected in the sentence imposed. It is a matter of public policy that people able to give such assistance, should be encouraged to do so by the rewarding of those who do give it, with a reduction in sentence which would otherwise have been imposed.

ignificantly, counsel for the Crown in this matter, Mr Lewis, stated that the undertaking and the evidence to be provided was very important to any case against the co-accused and consequently you should receive a less severe sentence. This concession is an acknowledgement at the assistance provided by you, including the undertaking to give evidence on oath, at any later trial, is a reason for a reduction in the sentence which would otherwise have been imposed upon you. Consequently, I have acted upon this and reduced the sentence I would have otherwise imposed. Would you stand up please?

On Charge 1, burglary, you are sentenced to 12 months imprisonment. On Charge 2, theft, you are sentenced to nine months imprisonment. On Charge 3, armed robbery, your are sentenced to three and a half years imprisonment. On Charge 4, possession of a drug of dependence, you are fined $500. On the summary charge of possess ammunition without a licence, you are charged $200. The head sentence is Charge 3, which is three and a half years on the armed robbery.

order that four months of the sentence on Count 1 and two months of the sentence on Count 2, be served cumulatively on Count 3 and on each other. The total effective sentence is four years imprisonment.

order that you serve a minimum term of two years and four months, before being eligible for parole. I have set a lower than normal minimum term for the following reasons: (1) During your time in custody, you have actively engaged in courses to enhance your chances of rehabilitation; (2) Your mental health issues, identified by Dr Cidoni, will likely make your time in custody more onerous than a person of normal health; (3) Your cooperation with authorities will likely make your incarceration more onerous.

declare that the period of 171 days, not including today, that you have spent in custody, be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details, be entered in the records of the court.

ursuant to s.5 of the Sentencing Act, sub-s.(2AB), I announce that I have imposed a less severe sentence than I would have otherwise imposed, because the undertaking you have given to the court, to give evidence against you co-accused, in accordance with your sworn statement, which is Exhibit 3 on this plea. And I direct that the fact that the undertaking was given and its details be entered in the records of the court.

have not made a statement under s.6AAA of the Sentencing Act, but I make it clear that I have taken your plea of guilty into account and reduced the sentence I would have otherwise imposed because of your plea of guilty. I have made Disposal Orders which were sought and a Compensation Order which was sought, as this was not imposed. I have also made an order in relation to s.464ZF of the Crimes Act, to provide a forensic sample.

inform you that in obtaining that sample, if you do not cooperate, a properly authorised police officer may use reasonable force to obtain a sample. I do

not expect you to cause any problem in relation to that. What the sample involves is placing a cotton bud in your mouth, taking a sample of your saliva for analysis for DNA, which will be placed on the register for future reference. But I am obliged to warn that if you do not cooperate, as I said, a police officer may use reasonable force to obtain it. You may be seated.

IS HONOUR: Would you remove the prisoner please? If counsel wish to raise anything with me, I propose to stand down until the next matter is ready to proceed. There is a plea this morning, I take it?

IS HONOUR: Yes, well unless there's something else that counsel wish to raise, I will adjourn temporarily.

County Court of Victoria

DPP v Claridge, Ben Matthew [2012] VCC 2108 (14 December 2012)