DPP v Roche & Brown [2014] VCC 527 (14 April 2014)

Last Updated: 19 November 2015

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted Suitable for Publication

AT WARRNAMBOOL CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY BROWN BRETT ROCHE

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^JUDGE: HIS HONOUR JUDGE GRANT

^{WHERE HELD:} Warrnambool

^{DATE OF HEARING:} 2 April 2014

^{DATE OF SENTENCE:} 14 April 2014

^{CASE MAY BE CITED AS:} DPP v Roche & Brown

^{MEDIUM NEUTRAL CITATION:} [2014] VCC 527

REASONS FOR SENTENCE

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APPEARANCES: Counsel Solicitors

For the Director of Public Prosecutions

Mr D. O'Doherty Office of Public Prosecutions

For Accused Brown Mr M. Turner Dwyer Robinson

For Accused Roche Mr S. Payne for plea

Mr X. Farrelly for sentence

Victoria Legal Aid

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne - Telephone [phone]

HIS HONOUR:

1. Mr Roche, you have pleaded guilty to one charge of attempted theft, eight charges of burglary, one charge of aggravated burglary, ten charges of theft, one charge of attempted burglary and one charge of armed robbery.

2. You are 25 years old. You have admitted a lengthy and relevant criminal history. It commences in 2004 and includes prior convictions for aggravated burglary.

3. Mr Brown, you have pleaded guilty to one charge of attempted burglary, one charge of armed robbery, seven charges of burglary and eight charges of theft.

4. You are 46 years old. You have admitted a lengthy and relevant criminal history going back to 1986. Most of your prior convictions are for offences of dishonesty.

5. The maximum penalties for these offences are: attempted theft, five years' imprisonment; burglary, ten years' imprisonment; aggravated burglary, 25 years' imprisonment; theft, ten years' imprisonment; attempted burglary, five year's imprisonment; and armed robbery, 25 years' imprisonment.

6. I have heard a summary of the offending. I do not intend to repeat the summary. It will be attached to these remarks as Exhibit A.

7. Mr Roche, you committed five offences in late July 2013. The first two charges involved you attempting to steal property from a car and entering a garage without permission. You then broke into a private dwelling and, after rummaging through cupboards and two vehicles in the garage, entered the house. You searched through various rooms before making your way to the bedroom where the two victims were sleeping. You entered this room and stole a jewellery box from the top of a chest of drawers. One victim woke to see you standing in the doorway of the bedroom. The victim screamed and

you ran from the house, dropping the jewellery box on the way.

8. This is very serious offending. One of the victims has provided a victim impact statement in which he says, "Having someone in our house has made me feel grossly invaded and uptight. From always feeling safe in our domain, I now feel very vulnerable and edgy."

9. The crime of aggravated burglary strikes directly at the heart of people's domestic security and their capacity to feel safe in their own homes. General deterrence is a central sentencing consideration.

10. You committed further offences in late August and early September 2013.

You paired up with Mr Brown and over a period of 12 days you both engaged in a spree of offending that involved breaking into various premises, some of them residential, and stealing property. The offending culminated in an armed robbery on 4 September 2013. The idea for committing this offence was formulated in the week prior to its execution.

11. After checking various pokies venues, you decided to commit the armed robbery at the Warrnambool Bowls Club. On the evening of 4 September you arrived at the club wearing balaclavas and gloves. You both entered the gaming room and approached the attendants at the counter. Mr Brown, you had a knife with you, jumped the cashier counter and removed cash from the till. Mr Roche, you stood in front of the counter, warning patrons to stay back. You were wielding a knife and a screwdriver until you were tackled to the ground by a very brave patron. Mr Brown, you then jumped back over the counter and fled the scene. Mr Roche, you broke free from the patron and followed Mr Brown. You were both arrested the next day.

12. The offence of armed robbery is a very serious offence. It not only deprives innocent victims of their property, it also puts them and others in fear for their bodily safety. In dealing with this offence, deterrence is generally the dominant purpose emphasised in sentencing.
13. In relation to this armed robbery, the aggravating features include the element of planning, the choice of a public venue where people would be present, and the efforts you made to disguise yourselves.

14. Victim impact statements have been tendered, detailing the harm suffered by three of the people present at the time the armed robbery took place. One victim has been unable to continue working in the gaming industry, and a second victim suffers from post-traumatic stress disorder. He is receiving treatment but believes the effect of the armed robbery will be with him for the rest of his life.

15. The burglary and theft charges are also serious, particularly those burglaries on residential premises. Some of the victims have provided victim impact statements detailing the financial and emotional harm they suffered as a result of your criminal acts.

16. Mr Roche, you engaged in large scale serious offending. The aggravated burglary and the armed robbery are particularly serious. In this case general deterrence is an important and central sentencing consideration. Given your previous history, specific deterrence, punishment and protection of the community are also highly relevant. You committed these offences whilst on parole. This is an aggravating feature of your offending. Although you are still a relatively young man, the seriousness of this offending and the extent of your prior history both operate to reduce the weight given to rehabilitation when balanced against the other sentencing considerations I have just mentioned.

17. Mr Brown, you do not have a charge of aggravated burglary. However, general deterrence is highly relevant to the armed robbery sentence and, given your prior history, specific deterrence, punishment and protection of the community are also highly relevant.

18. Both of you will be given credit for your early guilty pleas. You co-operated

with the police and there was no preliminary hearing. You have saved the victims from the trauma of giving evidence and you have saved the community from the time and costs involved in conducting a criminal trial.

19. Mr Roche, I accept that you have had a hard, difficult and disrupted childhood and adolescence. When you were three years old you were adopted. At the age of 12 you were returned to live with your birth father. This was not to your benefit. Your father had problems with alcoholism and anger. You told Dr Owens that throughout your adolescence you did not have enough to eat and ended up having to steal things from around the neighbourhood in order to feed yourself.

20. In his report, Dr Owens says that you have "a history of disordered attachments in childhood, frequent changes of care-giver, frank physical and emotional abuse and neglect, an early onset of delinquent behaviour, mostly in the context of early onset substance abuse."

21. You started drinking heavily from the age of 13. You left home at 14 and stopped attending school. You commenced using drugs and you commenced offending. Your first court appearance was in 2004 in the Portland Children's Court for offences of burglary, theft and car theft. You have a longstanding methamphetamine dependence, as well as a cannabis dependence, together with a history of opiate abuse and abuse of non-prescribed psychotropic medicines.

22. Dr Owens opines that you have a history of depressive and anxiety symptoms and it is likely that you fulfil the criteria for persistent low grade depression as well as panic disorder. He says that you have features of a personality disorder of antisocial and possibly borderline type.

23. Notwithstanding your age, I am not optimistic about your prospects for rehabilitation. I accept the assessment made by Dr Owens that your risk of reoffending is moderate to high. This assessment is based on your extensive

prior history of offending, your limited supports in the community, your mental state and your major problems with poly substance abuse. Dr Owens notes that you do show some insight into your predicament and that you remain willing to engage in treatment for your mental health issues.

24. At the time of this offending you had been told by your mother that you could no longer live with her. It seems that you resigned yourself to a parole breach and determined to support yourself and your drug usage by stealing other people's property. I have no doubt that when you committed these offences you were using large quantities of illicit drugs.

25. Matters that moderate sentence are your co-operation and plea of guilty and your disadvantaged background. The totality principle is also relevant. Given the large number of charges, I must carefully consider the individual sentences and orders for cumulation to ensure compliance with that principle.

26. I note you have been serving time for breach of parole since you went into custody on 5 September 2013. I have been advised that the sentence concluded on 5 April 2014. This is a matter for me to take into account. Finally, I have been advised that you have been serving your parole breach in protection and that such an arrangement will continue in relation to the sentence that I impose. This is a relevant matter in moderation because the sentence of imprisonment will be harder for you than it would be for a prisoner who is not in protection.

27. Mr Brown, you are a 46 year old man who was raised in Warrnambool. You have three older sisters and two younger brothers. Unlike Mr Roche, you had a relatively untroubled childhood. It appears your life went off track as a young man when you commenced experimenting with alcohol and drugs.

28. Dr Walton has provided a report on your behalf. He says this about your background: "Mr Brown's history of substance abuse dates back to 14 years of age. He stated that over the years he has tried virtually every type of illicit
29. drugs, a range of stimulants, hallucinogens and prescription medications, but the principal drugs of abuse have been amphetamine, lately methylamphetamine, cannabis .......and narcotics."

30. Dr Walton describes you as a man of normal intelligence, who is surprisingly resilient mentally given the repeated and varied chemical assaults upon your brain.

31. Your significant criminal history is explained by your constant need to obtain money to support your drug use. You have appeared regularly in court for offences of burglary and theft. You also have convictions for drug offences.

32. The bleak picture of drug use and offending was broken for a time between 1993 and 2002. You moved to Wagga Wagga where you obtained employment in a chaff mill. You also entered into a relationship that bore two sons who are now aged 16 and 14. You returned to Victoria in 2001 and resumed your drug use and your offending. You have not seen your sons in the last eight years.

33. Your current offending occurs in an environment of escalating drug use that resulted in the loss of your job as a pallet repairer, you became homeless, you committed the offences to obtain money to support yourself and your drug usage.

34. Given your extensive prior history, the escalation in the seriousness of your offending and your long-term drug use, I am guarded about your prospects for rehabilitation.

35. Dr Walton says you have reflected on your past conduct. He notes how you describe your conduct as pathetic and recognised if you did not change your behaviour, you were at risk of spending the rest of your life in gaol. All I can say is that these insights have come very late in your life.

36. It is to your credit that you have co-operated with the police and entered an

early plea of guilty. I note the gap in your offending between 1993 and 2002 and that you have no prior convictions for offences of violence. On the other hand, the armed robbery does mark a significant escalation in your offending. Given the large number of charges and the inevitability of some cumulation, the principle of totality is relevant and so is the principles of parity.

37. Mr Roche, you will be convicted on all charges and sentenced as follows. On Charges 1, 7, 15 and 21, three months' imprisonment on each charge. On Charge 3, two years and nine months' imprisonment. On Charges 2, 4, 5 and 6, six months' imprisonment on each charge. Charges 8, 9, 10, 11, 14, 17,

18, 19 and 20, 12 months' imprisonment on each charge. Charges 12, 13 and 16, 15 months' imprisonment on each charge. Charge 22, three years' imprisonment. I order that 12 months of the sentence on Charge 3, four months of the sentence on Charge 12, four months of the sentence on Charge 16, two months of the sentence on Charge 8 and two months on the sentence on Charge 10 be served cumulatively upon each other and upon the sentence imposed on Charge 22.

38. This makes a total effective sentence of five years' imprisonment. I fix a minimum of three years and nine months before you will be eligible for release on parole. I make a declaration that you have served eight days by way of pre-sentence detention.

39. Had you been found guilty after trial, I would have imposed a total effective sentence of six years and three months, with a minimum of five years.

40. Mr Brown, you will be convicted on all charges and sentenced as follows. On Charges 7, 15 and 21, three months' imprisonment on each charge. On Charge 6, six months' imprisonment. On Charges 8, 9, 10, 11, 14, 17, 18, 19

and 20, 12 months' imprisonment on each charge. On Charges 12, 13 and 16, 15 months' imprisonment on each charge. On Charge 22, three years' imprisonment. I order that four months of the sentence on Charge 12, four

months of the sentence on Charge 16, two months of the sentence on Charge 8 and two months of the sentence on Charge 10 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 22.

41. This makes a total effective sentence of four years' imprisonment. I fix a minimum of three years before you will be eligible for release on parole. I make a declaration that you have served 220 days by way of pre-sentence detention.

42. Had you been found guilty after trial, I would have imposed a sentence of five years and three months with a minimum of four years.

43. I make the disposal orders and the compensation orders that are sought by the prosecution.

44. The prisoners can be removed. Thank you.

45. I just have to sign those disposal orders when they are ready.

46. MR O'DOHERTY: Thank you, Your Honour.

47. HIS HONOUR: Thank you.

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Exhibit A: