Director of Public Prosecutions v Ahern

[2018] VCC 2246

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-1709

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM AHERN

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2018
DATE OF SENTENCE:	14 November 2018
CASE MAY BE CITED AS:	DPP v Ahern
MEDIUM NEUTRAL CITATION:	[2018] VCC 2246

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr W. Barker	Balmer & Associates

1HER HONOUR:  William Ahern, you have pleaded guilty to an indictment containing one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment. 

2The circumstances in which you came to commit that offence are set out in the summary of prosecution opening dated 15 October 2018, which was read into evidence at your hearing.  I have had regard to that opening when determining the appropriate sentence in your case. 

3In addition to making oral submissions, your counsel relied on a written outline of submissions for plea hearing, dated 9 November 2018.  I have also had regard to those submissions in formulating my reasons for sentence.

Circumstances of offending. 

4At about 8.20 pm on 20 March 2018, you entered the Dan Murphy's Liquor Store in Sydney Road, Fawkner.  You were carrying a black-coloured backpack over your right shoulder.  You walked around numerous aisles while watching the store security guard, Mohammad REZAEI.  At about 8.22 pm, you walked out of the store, before re-entering the store 30 seconds later, still carrying the black backpack.  You walked directly to the spirits aisle, where two other customers were standing.  You manoeuvred the backpack to your front and held it open.  You then selected a 1.25-litre bottle of Johnnie Walker Red Label whiskey, removing the security cap. 

5The security officer, Mr Rezaei, walked up to you and asked if you needed any help.  You replied, "No.  What do you think I am?  A thief?"  You were agitated and began swearing at him, and dropped the security tag to the bottle you were holding.  Mr Rezaei picked up the security tag and took the bottle from your hand, and told you that you would take another bottle with the security tag properly attached. 

6When Mr Rezaei backed away from the aisle, you began putting bottles of Johnny Walker into your backpack.  You picked up a bottle of alcohol in your right hand, holding the bottle by its neck and walking towards Mr Rezai, who had remained standing at the end of the aisle. 

7As you reached Mr Rezaei, you raised the bottle in your right hand.  Mr Rezaei placed his right hand on your backpack containing the bottles, and held his left hand up towards the bottle being held up, so that he could protect himself.  You both held onto the backpack, and as you walked around Mr Rezai, to be closer to the exit, whilst you held the bottle in a threatening manner. 

8Mr Rezaei pulled hard on the backpack, causing you to let it go.  He put the backpack on the ground behind him.  You stepped backwards towards the front door, transferred the bottle to your left hand, and took a small knife from the right front pocket of your shorts.  You waved the knife towards Mr Rezaei, who took off his jacket and waved the jacket towards the knife. 

9You waved the knife towards Mr Rezaei and moved forward, causing him to move backwards, past the manager's office. You took a backward step towards the door and Mr Rezaei began to follow you.  You jabbed the knife, which you were still holding, towards Mr Rezaei, who stepped backwards.  You then turned and walked quickly across the front of the store and past the front register towards the front door.  As you exited the door, you began to run; you were still holding the backpack containing the stolen alcohol. 

10Mr Rezaei and a Dan Murphy's customer followed you as you ran into the car park area and approached numerous cars, trying to open doors. You then walked towards the car park of the nearby Meadow Inn Hotel, followed by Mr Rezaei and the customer.  Mr Rezaei told you that if you put the items down you would not be followed and could go. 

11You again produced the knife towards Mr Rezai and the customer in an effort to get away from them.  They told you they would continue to follow you.  You then put the knife back in your pocket, placed the backpack on the ground and removed all bottles of Johnnie Walker.  At Mr Rezai's request, you shook the backpack and lifted up your shorts to indicate that there were no bottles in your possession before you ran away.

12The items that you appropriated were all recovered at the scene.  These were seven bottles of Johnnie Walker Red Label whisky and one bottle of Johnnie Walker Black Double whisky, with a total retail value of $495.88. 

13CCTV footage of the crime was tendered by the prosecution in the course of the plea hearing, as well as a collection of still photographs taken from that CCTV (Exhibit C).  I have watched that CCTV footage.  In addition to showing your offending, it shows several staff members of Dan Murphy's observing what was going on and it is clear that those staff were visibly shocked by what they saw.  A number of customers were also close by. 

14By agreement between the parties, and in reflection of the particularisation of the charge defences specifying the knife as the offensive weapon, I sentence you on the basis that the armed robbery commenced at the point of presentation of the knife, at which time you were appropriating the bottles of whisky.  The use of the bottle in the threatening manner therefore preceded the commission of the offence.  The offence continued into the car park as you endeavoured to make your escape, and to effect this escape you again produced the knife before relenting and leaving the bottles.

Investigation, arrest and interview 

15On 22 March 2018, you were located and arrested inside Unit 8 of the Stay Inn Motel in Coburg North.  Upon your arrest, a small knife with a green handle was located in the right front pocket of your shorts.  A photo of that knife was tendered on the plea, Exhibit D. 

16You were taken to the Fawkner police station and participated in a record of interview with investigators.  You admitted to taking the bottles of whisky but made no admissions as to the knife. You told police that you went into Dan Murphy's to get some bottles to make some money, and that on the day of offending you had used drugs, “shard or heroin, one of the two,” and that you had not been sleeping.

Reason for offending

17Your counsel relied on the explanation that you gave to police as being your reason for offending. 

18You had the knife on you, it was said, because you were homeless at the time of committing the offence, and it was used as a weapon of convenience to enable your escape.

Effect on the victim

19Mohamed Rezaei provided a victim impact statement (Exhibit B). 

20He stated,

"I was very stressed for a few weeks after the crime.  I had trouble sleeping and eating and was very stressed going back to work.  It also affected my family because they were worried of me doing the security guard job.  I was feeling very insecure because this was the first job I had (indistinct) found in Australia, and I really needed the job and had to convince my family that this will not happen in the future while I was not sure inside, but could not talk to anyone.  I was feeling alone because I am new in Australia and do not know all the rules, and do not have any relatives here.  I was enjoying my job a lot but since this happened I totally lost my self-confidence and still go to work every day thinking this might happen again." 

Plea of guilty and remorse

21You were charged on the date of your arrest, 22 March 2018, and were remanded into custody.  On 23 August 2018 at a submissions-only committal hearing, and without any witnesses being called, you indicated your intention to plead guilty to the proceeding count of armed robbery. 

22I accept and take into account that you pleaded guilty at an early stage, and as submitted by your counsel that that plea was indicative of remorse as well as having utilitarian value.  Though you took issue with the use of the knife in your police interview and maintained to Carla Ferrari, consultant psychologist, in the course of her interview that your intention was not to commit armed robbery, merely a theft, you also expressed your remorse for the offending and for the impact it likely had on those involved. 

Personal circumstances

23You are now 45 years of age, and were 44 at the date of offending.  You are at present unmarried and have two children aged 22 and 23 years.  Both children are with your ex-partner, Naomi, from whom you separated about 20 years ago.  I note that you have not seen Naomi or the children since then until your daughter, Sharnae, visited you in custody, during a previous sentence in 2015.  I note that it is your sincere hope to build a relationship with them now. 

24Your mother, Pam, is 62 years of age and works with disabled children. You still have contact with your mother and have been in regular telephone contact since you have been imprisoned, but have no relationship with your biological father, who was very abusive towards you and your mother.  Ms Carla Ferrari, Consultant Psychologist, assessed you and prepared a psychological report dated 29 October 2018 (Exhibit 2).  In it, she described your childhood as “difficult,” and noted that you both witnessed and experienced family violence.  As the eldest of four boys, you felt that it was your responsibility to protect your mother and you would often attempt to intervene in the disputes between your parents, which also resulted in you being abused. I note that your family fled from your father while he was in custody. 

25You have a stepfather, Steve, aged 58 years of age, who works for the local council in the parks and gardens section.  Steve has a long history of employment with the council commencing when he was about 17 years of age. 

26As I have mentioned, you have three siblings, all younger brothers aged between 36 and 42.  I note that you were supported by your brother, Dennis, who works as a forklift driver, at the hearing of the plea in mitigation of penalty.

27In primary school, whilst you were in Grade 5 or 6, you were referred to a school specifically for students who were behind in reading and writing.  However, you attended additional remedial schooling in an attempt to catch up to your peers. 

28You attended Northcote Tech for a short period, and then Preston Tech.  You were educated to Year 8 and left due to behavioural issues which were related to your struggle to read and write, which led to frustration and anger and generally disruptive behaviour.  You still have difficulties with literacy.  You were then moved to live in Nhill in the country with your uncle. You stayed in Nhill for about two and a half years before returning to Melbourne. 

29From the age of 16, you worked casually in carnivals and festivals when work was available, setting up rides and shows and disassembling them at the end.  You have also worked a number of times in abattoirs, including Ralph’s Meat in Seymour where you had worked as a boner.  However, none of these periods of employment were for extended periods. 

30You have suffered anxiety since you were a child. 

31Ms Ferrari hypothesises in relation to your current diagnoses the following conditions:  major depressive disorder, recurrent moderate; amphetamine type substance use disorder, moderate, in early remission in a controlled environment; opioid use disorder, moderate, in early remission; and a history of uninvestigated learning problems and illiteracy. 

32She expressed the view that you had a predisposition to mental health issues and substance use as a result of your prejudicial upbringing, including family violence and poor role modelling as your father was aggressive, abused substances, and was often absent due to being incarcerated. Your significant experiences during childhood, coupled with disruptive attachment, as well as limited guidance and support during the critical period of your adolescence contributed to your chronic depression, anxiety and underlying personality vulnerabilities, which you have served to medicate with substances. 

33Your counsel, whilst noting these diagnoses and opinions, conceded that their significance fell short of activating the principles arising from the case of Verdins v The Queen (2007) 16 VR 269, and later cases applying the principles therefrom.

34It was submitted in accordance with the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571 that your deprived background may mitigate the sentence that would otherwise be appropriate, at [37]. The court in Bugmy held that the effects of profound deprivation do not diminish over time and they are to be given full weight in the determination of the appropriate sentence in every case. The experience of growing up in an environment surrounded by abuse and violence may leave its mark on a person throughout life (at [43] and [44] of Bugmy). 

35However, in that case at [44], it was noted that that was not to suggest, that an offender's deprived background has the same (mitigatory) relevance for all the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion, in my case, so difficult.  Your childhood exposure to violence and abuse and alcohol abuse, drug abuse, may explain your recourse to opportunistic means to obtain property to fund your drug habit.  However, the inability to control the violent response to resistance to those attempts may increase the importance of the need to protect the community from you.

36I note that you have a long history of drug use, commencing with your introduction to cannabis after you had moved to Nhill when you were 15.  Upon returning to Melbourne when you were 18, you were introduced to heroin by some of your friends who were working in the sex industry.  You eventually developed a habit, using up to half a gram per day at the peak.  You used heroin for most of your life up until 2017, when you were released from Dhurringile Prison. 

37You have used methamphetamine.  However, such use was infrequent prior to 2007, and you were not addicted.  Nonetheless, you became addicted to methamphetamine when you ceased heroin use. 

38I have been told by your Counsel that you had been using methamphetamine for at least ten days straight prior to the offending in this matter.   Your counsel submitted that the explanation that you had provided for your offending in your police interview, was accurate and that you had gone into Dan Murphy's to get some bottles to provide to a person who had been giving you drugs, if you performed the tasks that that person requested.  On the day of the offence, this person had said that they were almost out of "this," that is Johnnie Walker whisky, and that you had gone to Dan Murphy's in order to obtain a supply of Johnnie Walker for this person, and you believed that you would obtain drugs in exchange for that Johnnie Walker.

39I have been advised, and this fact is confirmed by a remand summary provided to me after the conclusion of the plea in mitigation I have exhibited as Defence Exhibit 4, that in September 2017 you had been released from a sentence of imprisonment and that, after your release, owing to your absence of support, you had been homeless and sleeping rough in the Carlton Gardens behind Imax. Your daily habit was to visit a laundromat in Brunswick Street, where you could charge your phone and, then, to a Jesuit Social Services in Brunswick Street, where you could have a shower.  You would spend each day with other people from whom you could get drugs and in whose company you could use drugs, before returning to the Carlton Gardens each night.  I have been told and accept that it was a very difficult period for you.

40I note that your time on remand has been productive and I accept and take into account your completion of courses whilst in prison, including the completion of Alcohol and Other Drug Services Except Preparation for anger management and the 24-Hour Program on ice addiction; the Managing Emotions program; the prison legal education and assistance project court readiness program; and the numerous courses completed through the Box Hill Institute, Certificate III in Cleaning Operations, Certificate I in Access to Vocational Pathways, Certificate I in General Education for Adults - Test and Tag, a course in general education for adults, a first aid course and a Certificate II in Engineering - Exhibit 3.  Though I am told you have real issues with literacy, you have not let that prevent your successful completion of so many courses whilst on remand, and I commend you for that.

41Ms Ferrari also notes that, to your credit, you have reportedly abstained from substances throughout your period on remand which you claim to have not been able to do in the past.  You display insight, she says, about the need to engage with professional support to address your longstanding substance use issues, and you have expressed a desire to be considered for residential rehabilitation as you recognise you cannot break the cycle on your own.

Prior criminal history

42You have a very extensive history of criminal offending, a record of which was tendered at the plea.  Your first appearance was for four charges of burglary, four of theft, and one of attempted burglary in 1991 when you were 17 years old. 

43Amongst many other court appearances, in 2000 you first appeared before this court for offences including two of armed robbery and two of attempted armed robbery, and were sentenced to a total effective sentence of four years and six months, with a minimum of two years and six months.  You again appeared before this court in 2007 for armed robbery and other offences and were sentenced to a total effective sentence of five years, with a minimum of two years and six months. I was told by your counsel that this has set up a cycle of imprisonment and release and that now were you given the choice between the life of homelessness that you had faced outside custody and gaol, you would find it difficult to choose.

44In 2012 you appeared before the Magistrates' Court for attempted robbery, and was sentenced to gaol.  In February 2017, you came back before this court on appeal, against an order of the Magistrates' Court imprisoning you for a number of public order offences, and was sentenced to one year and two months, with a minimum of eight months. 

45Your remand history reveals that, since 27 January 2007 as summarised by your counsel, you have spent 3,833 of a total of 4,309 days in custody which equates to 89 per cent of approximately 11 years.

Objective gravity of the offence of armed robbery

46The offence of theft, as an element of the armed robbery to which you have pleaded guilty, involved some modest planning.  The offending took place over several minutes and was not momentary.  It was precipitated by Mr Rezaei doing his job, and bravely standing his ground and insisting you desist from your purpose, and you escalated the offence by presenting the knife, when your threat with the upturned bottle was unsuccessful. 

47The offence was also committed during the mid-evening, exposing members of the public to the offending and the potential for harm, with customers and staff present in the store during the course of the armed robbery. 

48I accept your Counsel's submission that your offence lacks many of the aggravating features of other offences of this nature. 

49I also note, unfortunately, that your criminal history is more extensive than others who come before the court. 

50Ms Ferrari accepts that you remain a moderate to high risk of recidivism, not due to an abhorrent disregard for the law or a criminogenic attitude, but due to your extensive forensic history, your chronic substance use, and that you are particularly vulnerable, due to your unstable psychosocial circumstances which increase your risk of relapse into substance use, living an itinerate, unstructured lifestyle and, therefore, a further mental state decomposition.

51As I understand the ultimate submission made on your behalf, it is open to me to characterise your offending as being at the lower end of seriousness for this charge; prosecution counsel accepted that the offending fell towards the lower end of the scale and I am satisfied that it can properly be classified as falling towards the lower end.

Relevant sentencing principles, and current sentencing practices

52I take into account the purposes for which sentence must be imposed and the need for deterrence, both, general and specific.  I accept that the gravity and prevalence of the offence of armed robbery, particularly on a soft target such as a bottle shop, requires a conclusion that general deterrence is the primary sentencing purpose. 

53I also consider that specific deterrence is needed in your case, given your prior criminal history. 

54The sentence I will impose will punish you and denounce your behaviour, whilst allowing for your continued efforts at rehabilitation.  I commend you for your abstinence from illicit drugs whilst in custody and also your completion of that significant number of courses and, whilst noting Ms Ferrari's comments, I consider that you do have some prospects for successful rehabilitation.

Sentencing submissions

55It was agreed by both counsel that in all the circumstances a custodial sentence was required.  

Sentence

56On the charge of armed robbery, you are convicted and sentenced to two years and ten months' imprisonment, and I direct that you serve a period of two years and three months before you are eligible to apply for parole. 

Pre-sentence detention

57I note pre-sentence detention as being 236 days, excluding today.  Is that correct?

58MR BARKER:  It's 237, Your Honour.

59HER HONOUR:  237, excluding today.

S 6AAA declaration

60Pursuant to s.6AAA of the Sentencing Act of Victoria, I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to four years' imprisonment, with a non-parole period of three years. 

Ancillary orders

61And, lastly, there was a disposal order.

62MR BARKER:  Your Honour, that's not being pursued.

63HER HONOUR:  Very well.

64MR BARKER:  So could I seek to withdraw that application?

65HER HONOUR:  Yes, by all means.

66MR BARKER:  Thank you very much.

67HER HONOUR:  So I'll dispose of the disposal order

68MR BARKER:  Yes, thank you very much.

69HER HONOUR:  Are there any other matters for me to consider?

70MS VARDY:  No, Your Honour.

71MR BARKER:  No, Your Honour.

72HER HONOUR:  Thank you very much.  I will stand down until 10 am.

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