Director of Public Prosecutions v Ahern
[2020] VCC 245
•10 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-01771
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
WILLIAM FREDERICK AHERN
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2020 | |
DATE OF SENTENCE: | 10 March 2020 | |
CASE MAY BE CITED AS: | DPP v Ahern | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 245 | |
REASONS FOR SENTENCE
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Catchwords: Guilty plea, armed robbery, delay, s6AAA
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Office of Public Prosecutions |
| For the Accused | Ms S. Vardy | Balmer and Associates |
HIS HONOUR:
1 William Ahern, you have pleaded guilty to two charges of armed robbery committed on 11 March 2018 and 19 March 2018. The maximum penalty for armed robbery is 25 years.
2 The circumstances of your offending are set out in the prosecution opening dated 17 January 2020 and can be described briefly.
Facts
3 On Sunday, 11 March 2018 at 3.10 pm you entered the Dan Murphy's store in Preston carrying a backpack. You made your way to the spirits section of the store and you took a bottle of Gentleman Jack whiskey off the shelf and put it in the backpack. You then walked away briefly before returning to the spirits area and removing a second bottle of Gentleman Jack whiskey which you also put in the backpack. You walked towards the front of the store where you were confronted by Mr Bisht, a store security guard. He asked you what was in the backpack. You became aggressive, produced a box cutter and pointed it towards Mr Bisht. He moved out of your way and you left the store with the two bottles of whiskey. The value of what you stole was $122. The offence was captured on CCTV which was played to the court during the plea hearing. These facts are the basis of Charge one.
4 On Monday 19 March 2018 at 7.53 pm you again entered the Dan Murphy's store in Preston with a backpack. As you were making your way to the spirits section of the store you were recognised by staff and approached by Mr Zolgairnan, a store security guard. He followed you to where the bottles of tequila were located. You removed a bottle of tequila worth $67.90 and put it in your backpack. Mr Zolgairnan told you to return the tequila to the shelf. You then produced a small silver knife and you pointed it at him. He retreated to the front of the store. You took three more bottles of tequila and another bottle of unknown liquor and put them in the backpack. You then ran back to the front of the store towards Mr Zolgairnan. He picked up a bottle of red wine to defend himself and you ran towards him with the knife extended. You moved passed him and walked backwards through the cash registers and out the front door of the store carrying a backpack with stolen alcohol in it. The value of the tequila was $271.60. This incident was also captured on CCTV which was played to the court during the plea hearing.
5 You were arrested on 22 March 2018 for a very similar armed robbery at the Dan Murphy's store in Fawkner. You have been in custody since your arrest in relation to that matter.
Guilty Plea
6 You pleaded guilty at the second committal mention of this matter on 3 September 2019. This was an early plea of guilty. You have saved the community the time and the cost of a trial and you have spared the witnesses the ordeal of giving evidence in this matter.
7 I accept the plea is also indicative of a measure of remorse for your offending and I have taken that matter into account.
Objective Gravity
8 Armed robbery is always a serious offence as reflected in the maximum penalty of 25 years. It was put on your behalf that you did not intend to commit armed robbery when you entered the store; rather, your intention was simply to steal alcohol.
9 However, on each occasion you took a knife with you or a box cutter, and it must have been apparent to you, certainly after the first occasion, that there was every chance of a confrontation with security.
10 I regard charge two as the more serious of the two armed robberies because in the second incident you twice brandished a knife at the security guard, including running at him with a knife before you left the store. In my view, when you entered these Dan Murphy's stores you intended to use the weapon you had with you to facilitate the theft of the alcohol in the event that a confrontation arose.
11 It is put that there was no planning or premeditation to your offending although apparently you were stealing specific bottles of alcohol to swap for drugs with your drug dealer.
12 I agree that the offending was unsophisticated and that it was inevitable you would be detected. There was CCTV inside the premises and you did not try and conceal your identity. I accept that you lived nearby and the fact that you committed these offences on the same Dan Murphy's in Preston made it likely you would be recognised on the second occasion. The value of the items was low.
13 These are relatively low level examples of armed robbery but nonetheless it is serious offending.
14 Using a knife to threaten innocent people going about their jobs in order to steal is serious criminal conduct. People working in retail stores should not have to tolerate this type of conduct which creates substantial fear and which can cause ongoing anxiety, apprehension and mistrust. It is incumbent on the courts to denounce such conduct and send a message to others minded to engage in such behaviour that it will be met with significant sentences of imprisonment.
Victim Impact
15 A victim impact statement was tendered from Tanya Nachtigal who was working at the Dan Murphy's stores on both occasions when you committed these offences. In her victim impact statement she describes you as being very threatening and saying very nasty things. She says she reconsidered her employment over the following weeks and that she was nervous at work for several months. She says she will never forget these incidents and that it has caused her to have trust issues with customers which she did not have before your offending. This is a typical and understandable reaction to offences such as these.
Earlier Sentence and Delay
16 I turn to the offence for which you are presently undergoing sentence.
17 The offence of armed robbery, for which you were arrested on 22 March 2018, was finalised in this court on 14 November 2018. You pleaded guilty and you were sentenced by Judge Marich to two years and 10 months imprisonment with a non-parole period of two years and three months. Two hundred and thirty seven days of pre-sentence detention was declared.
18 The circumstances of that matter were very similar and the offences took place the day after charge two on the current indictment. The central matter put in mitigation on your behalf is the delay in bringing the charges for the armed robberies on the current indictment. It is accepted by the prosecution that the delay in bringing the charges is not attributable to you and that it is a mitigating factor in your favour. I accept this.
19 The sentence imposed by Judge Marich, as I have said, was for very similar offending conduct, taking place at the Dan Murphy's store in Fawkner the day after the second incident in this case.
20 You have been deprived by the delay of the opportunity for some concurrency given any sentence I impose will exceed what remains of the gaol sentence imposed by Judge Marich. You have lost the opportunity of having issues of concurrency and totality considered by the same judge. In sentencing you I will need to moderate the sentence that I impose to some extent in order to comply with the principle of totality.
21
Secondly, you have been in prison for nearly two years now on the
Dan Murphy's Fawkner armed robbery. I accept the delay in bringing the current charges has caused you anxiety and has increased the burden of your imprisonment because you knew that these charges were pending and you knew that you would inevitably receive a further sentence of imprisonment beyond the earlier sentence. Therefore you have spent your time in prison dealing with the uncertainty of not knowing the date of your ultimate release.
22 Your counsel, Mr Barker, submitted that the earlier offence for which you were sentenced by Judge Marich was a more serious example of armed robbery relative to the offences for which I must sentence you.
23 I accept this submission as that offence involved a more extended confrontation with the security guard, including thrusting the knife towards him twice and where the incident continued on in the car park when the security guard tried to prevent you getting away.
24 The prosecutor submitted that Judge Marich's sentence had, in a sense, set the bar for what is an appropriate sentence in this case but that I would need to take into account the mitigating feature of delay and that these two charges are less serious than the earlier offence.
Personal Circumstances
25 I turn to your personal circumstances. Mr Ahern, you are now 46 years of age. You were 44 when you committed these offences. You are a single man but you have two children aged 23 and 22 to your ex-partner, from whom you separated about 20 years ago.
26 Your mother, Pam, who is aged 62, works with disabled children. You still have contact with her but you have no relationship with your biological father who was an abusive man towards both you and your mother. Your parents separated when you were aged nine due to family violence which you witnessed and experienced.
27 According to Ms Carla Ferrari, the psychologist who assessed you and prepared a psychological report which was tendered on the plea, you felt it was your responsibility to protect your mother and often you would intervene in disputes with your parents. Apparently, your family fled from your father whilst he was in custody.
28 You have a stepfather named Steve who works for a council and has done so since he was about 17 years old. You have three siblings, all younger brothers, aged between 36 and 42.
29 You struggled at school and received remedial schooling because you were behind in reading and writing. You attended Northcote Technical School for some time and then Preston Technical School. Ultimately you left school after Year 8 due to behavioural issues related to your struggles with literacy and consequent frustration and anger. You moved to the country to live with your uncle.
30 You have worked at carnivals and festivals since the age of 16 setting up and disassembling rides and shows. You have also worked in abattoirs. None of your employment has been of longstanding.
31 You have a long history of drug use commencing when you were 15 when you started using cannabis. You have used heroin and in more recent times you have been using methylamphetamine regularly and I am told that you used amphetamines for around 10 days straight prior to committing the offences in this matter.
32 You have apparently suffered anxiety since you were a child and Ms Ferrari postulates the following conditions:
Major depressive disorder, amphetamine type substance use disorder, opiate use disorder and a history of learning problems and literacy. She also says that as a result of your upbringing which included family violence and poor role modelling from your father who was violent and abused substances, you were predisposed to mental health issues.
33 Mr Barker has submitted that in accordance with the decision in Bugmy your deprived background mitigates the sentence that would otherwise be appropriate.
34 I accept that your upbringing has contributed to your ongoing substance abuse which was a causal factor in the offending, and I do regard your background as a mitigating feature.
Criminal History
35 I turn to your criminal history. Mr Ahern, you have a long and unfortunate criminal history. Over the years you have been convicted for a very wide range of criminal offences.
36 In 2000, for offences including two armed robberies and two attempted armed robberies, you were given a total effective sentence of four years and six months with a minimum of two years and six months.
37 You again appeared before this court in 2007 for armed robbery and other offences and received a total effective sentence of five years with a minimum of two years and six months.
38 I have been provided with the sentencing remarks of Judge Hart in 2007 when he sentenced you for armed robbery. He accepted then that you had insight into your offending. You were aged 33 at that time.
39 The fact that eleven years later you were still engaging in armed robbery offending demonstrates that whatever insight you had in 2007 it did not lead you away from a lifestyle of drug use and criminal behaviour.
Prospects of Rehabilitation
40 I turn to your prospects of rehabilitation. Mr Ahern, since you have been in custody you have engaged in rehabilitation at the Metropolitan Remand Centre including in relation to the use of drugs. I have been provided with reports relating to courses for anger management and Ice addiction as well as educational certificates for courses undertaken through the Box Hill Institute.
41 It is to your credit that you have used your time within the prison to further your rehabilitation. You have also been drug free in the prison since you were arrested back in 2018.
42 Mr Barker relied on these matters but conceded that you must address your substance abuse and mental health issues in order to stop offending.
43 It was submitted, and I accept, that the delay in bringing these charges has precluded you from undertaking various courses which you cannot start until all pending matters have been finalised. In this regard the delay has also prevented you from commencing that aspect of rehabilitation within the prison.
44 Against all this, of course, is your very lengthy criminal history including prior convictions for armed robbery. You have been appearing in the criminal justice system now for many years. Having regard to your lengthy criminal history it is difficult to take more than a guarded view of your prospects of rehabilitation notwithstanding the work that you have done whilst you have been in prison.
45 However, efforts such as those which you have made in your time in custody should be encouraged and I have taken them into account in fixing the sentence in this matter.
Sentencing Principles
46 The purposes for which a court may impose sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and protection of the community. I must have regard to a range of factors including the seriousness of your offending, your culpability for it and your personal circumstances.
47 I have already referred to the importance of denunciation and general deterrence in cases of armed robbery. In your case, given your long criminal history and previous convictions for armed robbery, specific deterrence is also a highly relevant sentencing consideration; but I must also seek to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.
48 I turn to the application of the totality principle in this case. The head sentence imposed by Judge Marich expires on, I am told, 19 January 2021. You are eligible for parole in June of this year, specifically 21 June 2020.
49 In applying the totality principle in this matter, given the delay in bringing the charges, I have attempted as best as I can to structure a sentence which approximates the likely sentence had all these matters been dealt with back in 2018 by Judge Marich, but allowing for the fact that you have spent the last two years uncertain of your future and you have been unable to participate in some rehabilitative programs because all of your matters had not been finalised.
50 In order to achieve this I have made the aggregate sentence which I will impose for these two offences entirely concurrent with the sentence you are presently undergoing.
51 Of course, a substantial portion of the sentence will, in effect, be cumulative given the current sentence expires in just over 10 months. I have fixed a new non-parole period as I am required to do by s.14 of the Sentencing Act. That new non-parole period is to commence from today.
Sentence
52 Mr Ahern, I have balanced the serious aspects of your offending against the mitigating matters that I have accepted.
53 If you could please stand up.
54 On Charges one and two of armed robbery you are sentenced to an aggregate sentence of two years and two months.
55 For the purposes of clarity I state that that sentence is concurrent with the sentence you are presently undergoing.
56 In my view an aggregate sentence is appropriate as the offences here constitute a series of offences of the same or a similar character as required by section 9 of the Sentencing Act.
57 Pursuant to section 14 of the Sentencing Act I fix a new overall minimum non‑parole period of 14 months commencing today. There is no pre-sentence detention to be declared under section 18 of the Sentencing Act but it is my expectation that the pre-sentence detention of 237 days declared by Her Honour Judge Marich on 14 November 2018 will be counted and reckoned as part of the sentence already served.
58 Pursuant to s.6AAA the total effective sentence that would have been imposed but for the plea of guilty would have been three years with a new non‑parole period of 24 months.
59 I make the forfeiture order as sought by the prosecution in relation to the shoes, the knife, the backpack and the jacket.
60
Now just for the purposes of transparency, returning to
Judge Marich's sentence, the overall period of imprisonment on both sentences is about 10 days shy of four years and two months. We are not quite at 22 March yet but that is approximately right and the overall minimum non-parole period, if you look at it globally, is in the order of three years and two months.
HIS HONOUR: So does that all add up and make sense?
MR McCARTHY: Yes, Your Honour.
MS VARDY: Absolutely, yes.
HIS HONOUR: Just so you know, Mr Ahern, it's not open to me to declare the 237 days that Judge Marich declared again but this sentence is imposed on the understanding that that 237 days comes off the overall sentence. My sentence starts today. It's for two years and two months. That will be the end of your head sentence and I've fixed a new overall non‑parole period of
14 months starting today. So you will be eligible for parole in 14 months from today. So that perhaps gives you some incentive to keep pursuing your rehabilitative programs in the prison, Mr Ahern, to give yourself the best chance of getting parole. All right. Now if that all makes then that's that and I'll stand down until 10.30AM.
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