Director of Public Prosecutions v Agbayani

[2016] VCC 928

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00577

DIRECTOR OF PUBLIC PROSECUTIONS

V

ANGELICA AGBAYANI

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2016
DATE OF SENTENCE:	1 July 2016
CASE MAY BE CITED AS:	DPP v Agbayani
MEDIUM NEUTRAL CITATION:	[2016] VCC 928

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence          

Catchwords:   Plea of guilty to one charge of attempted armed robbery and one charge of intentionally causing injury – offender entered victim’s car and demanded she drive away - use of knife to inflict stab injuries on victim – minor injuries – frightening experience for victim –offender former drug addict diagnosed with chronic mental illness – served nearly seven months before released on bail.

Sentence: 197 days as  time served.  2 years  Community Correction Order

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APPEARANCES	Counsel	Solicitors
For the DPP	Ms S Clancy	OPP
For the Accused	Mr R Stransky	Antony Sidrinis & Co

HER HONOUR: 

1Angelica Agbayani, you have pleaded guilty to one charge of attempted armed robbery and one charge of intentionally causing injury.

2On 17 September 2015, the victim had parked her car in a car park in Ringwood while she undertook some photography work nearby.  On returning to her car and having placed her camera equipment on the front seat, she got into the driver's seat.  You had approached the car and the victim saw you standing in front of it looking directly at her.  You then quickly ran to the passenger side and got into the front seat, amongst the considerable quantity of photographic equipment which was there.

3You said to the victim, "Keep driving, keep driving."  You had a box cutter in your hand at the time, of which the small metal blade was visible to the victim.  The victim told you to get out and tried to push you out of the car, and there was a short struggle in which you jabbed her twice through her top with the box cutter.  As a result she suffered superficial wounds to her right hand, her chest and abdomen.  She described these jabs as being of medium strength and that she felt they were intended to scare her rather than hurt her.  Despite her screaming, no-one came to help her and she punched you to the head several times with a clenched fist.  You then got out of the car and ran off.

4Two days later the victim found your mobile phone in her car and gave it to the police.  They were able to locate you from the phone records and when executing a search warrant at your house they found four box cutters and a triangular blade with a wooden handle. 

5You were interviewed by the police that afternoon and essentially answered
"no comment" to the allegations.

6You were remanded in custody and you remained there until you were bailed at the commencement of the committal proceedings in April this year.  You have therefore spent 197 days in custody which, apart from several days in a police cell when you were charged with other matters in 2011, have been your first experience of prison.

7The resolution of the charges resulting in your plea of guilty occurred, following a change of solicitors, shortly before the committal.  Apparently you had been prepared to plead guilty all along, but that cannot be discerned from your record of interview in which there are no admissions.  It was not a plea at the earliest reasonable opportunity and the victim was prepared to give evidence at the committal but was spared that experience at the last minute.

8I also accept that your plea is an indication of remorse for a crime which seems quite out of character.  Nonetheless, you are entitled to a discount on your sentence for having avoided a trial and the associated expense and inconvenience.

9You are now aged 30 and you were 29 when you committed these offences.  You completed secondary school and completed a certificate course in Occupational Health & Safety over three years at RMIT.  You worked in a number of jobs over the years but spent a considerable period unemployed, which seems to coincide with the abuse of drugs, in particular the regular use of ice for three years, including at the time of the previous offending in 2011. 
It may have extended into 2012, I am not certain about that.

10In any event, in 2012 you were placed on a Community Correction Order for drug-related offending and as part of that order you had extensive counselling with the psychologist, Mr Jeffrey Cummins.  He saw you again recently and diagnosed chronic adjustment disorder with mixed anxiety and depression, having its origins in drug use and the turbulent family life that has prevailed and in which you still live.  By that Mr Cummins was referring to the fact that your three older siblings have all been drug users and have all been dealt with for such offending.

11Mr Cummins also diagnosed a probable Schizoid Personality Disorder, which is consistent with what might be described as the bizarre behaviour involved in the offending, with no demonstrated intent to steal the photographic equipment in the victim's car, and the inexplicable demand to her to keep driving.  The explanation that you offered was that you had found yourself in an unfamiliar area in Ringwood, not knowing how you got there and panicked, resulting in your approach and demand to the victim.  That night you slept in a hotel in the city with no explanation as to why you did so.

12You come from a hardworking immigrant family in which, unfortunately, all the children have fallen victim to the scourge of illicit drugs.  Your father retired early some years ago in order to be at home to try and maintain some order and your mother continues to work as a disability carer to help with family finances, but does shift work so that she also can be at home when needed.

13It seems that you now lead a somewhat reclusive life, remaining at home, unemployed and engaging little in any outside life while trying to consider a future career.  At the same time you have been drug-free for some time, about four years, and these offences are isolated ones.  In particular, you have no previous history of any violent offending.

14You have been on strict bail conditions and there is no indication of any breach.  Your closest contact is now with your sister, Emily, who is a nurse, but who was sacked because of drug use and now lives in the family home as well.

15Your counsel submitted that time served and a Community Correction Order would be an appropriate sentence given your need for ongoing treatment.  The prosecution position was similar and there was agreement as to the seriousness of the charges being at the lower end of the range.  Indeed, the more serious charge in this case is the injury charge, because of the terrifying situation in which you placed the victim, jabbing her with the box cutter.

16You have been assessed as suitable for a Community Correction Order, with the notation by the officer concerned that you are considered to be at medium risk of re-offending.

17In deciding to impose a Community Correction Order, combined with the period of time you have already spent in custody as a remand prisoner, I have considered the seriousness of the two charges and the type of offending you committed.  The sentence should be such as to deter others from such behaviour, taking into account that the maximum sentences are 20 years and ten years' imprisonment respectively.

18It is clear from the Victim Impact Statement that she suffered greatly from the ordeal.  She had to give up some of her work and became generally distrustful and wary of people.

19Taking into account the mitigating factors I have referred to, I am satisfied that further prison time is not necessary for the purposes of either general or specific deterrence and that treatment and supportive programs are the best means of assisting you in your rehabilitation. 

20Clearly you are an intelligent person whose life has been seriously derailed by drug use and psychological barriers.

21Accordingly, for both charges I shall impose a Community Correction Order which will begin today and will last for two years.  You will be under supervision and you must perform 100 hours of unpaid community work over six months. 

22You must be assessed for and be treated for any issues relating to drug and alcohol abuse and you must take part in programs designed to address
re-offending.  You must also come to court from time to time as part of the judicial monitoring regime so that I might take part in monitoring your progress.  The first date for that will be 18 August at 9.45 am. 

23You must go to the Box Hill Corrections office, which is at 703 Station Street, Box Hill, by 4 o'clock on 5 July.

24I further sentence you to 197 days' imprisonment as part of an aggregate sentence for the two charges.  I declare that those 197 days of pre-sentence detention are to be reckoned as already served and I shall cause that to be noted on the court record. 

25If you had pleaded not guilty to these charges, I would have sentenced you to ten months' imprisonment in combination with a Correction Order of 18 months.

26The prosecution seeks a disposal order for the knives and clothing worn and an order for a forensic sample of saliva to be obtained.  You have consented through your counsel to those two orders and I make them.  I just need to advise you that in obtaining the forensic sample of saliva, the police do have the power to use reasonable force if necessary, but I trust that will not be the case.

27Is there anything I have omitted, Ms Clancy?

28MS CLANCY:  No, Your Honour.

29HER HONOUR:  I do not think the aggregate sentence is a problem. 

30MS CLANCY:  No, there is no issue with the aggregate sentence.

31HER HONOUR:  There have been some issues, but I think it is entirely appropriate in this case.

32MS CLANCY:  Yes, Your Honour.

33HER HONOUR:  Any issues, any omissions?

34MR STANSKY:  No, Your Honour.

35HER HONOUR:  That is ready now for signature by your client.

36MR STANSKY:  Yes.

37HER HONOUR:  Do you want to have a look first, Mr Stansky?

38MR STANSKY:  Certainly. 

39HER HONOUR: Ms Agbayani, when you come to court on 18 August, you do not need to come with any of your legal representatives and there will be no-one here from the prosecution.  There will be a Corrections Officer on the video screen.  You come here and you sit there at the table and I will have a report from the Corrections Officer as to your progress so far.  Hopefully you will have been given a copy of that report at the time, and I will have a short discussion with you about your progress.  That is what will happen then.

Is 18 August all right for you?

40OFFENDER:  Yes.

41HER HONOUR:  Good.  Thank you.  Anything further?

42MS CLANCY:  No, Your Honour.

43MR STANSKY:  No, Your Honour.

44HER HONOUR:  All right.  Adjourn the court please.

45(Community Correction Order signed and acknowledged.)

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