Director of Public Prosecutions v Aird (a pseudonym)
[2020] VCC 657
•22 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ETHAN AIRD[1] GEORGE KALAMATAS |
[1] Matter anonymised to protect identity of Accused in all the circumstances.
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| JUDGE: | HER HONOUR JUDGE RIDDELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 February 2020, 8 April 2020, 19 May 2020 |
| DATE OF SENTENCE: | 22 May 2020 |
| CASE MAY BE CITED AS: | DPP v Aird (a pseudonym) & Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 657 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Armed Robbery – Soft Targets – Prevalent Offence – Parity
Legislation Cited: s.3(1) Sentencing Act 1991 (Vic) – s5(2)H(8e) Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571 – R v Verdins (2007) 16 VR 269 – DPP v Green [2020] VSCA 23
Sentence:Aird: total effective sentence of five years and four months imprisonment with a non-parole period of four years and two months.
Kalamatas: total effective sentence of three years and eight months imprisonment with a non-parole period of two years and two months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For Accused Aird | Mr C. Terry | Leanne Warren & Assoc. |
| For Accused Kalamatas | Ms K. Ljubicic | Doogue & George |
HER HONOUR:
1Ethan Aird[2] and George Kalamatas, you have both pleaded guilty to two charges of armed robbery committed on liquor stores in the north-western suburbs of Melbourne. Those offences occurred one week apart in June 2019. A third co-accused, Ms Carmela Lo Bosco, who drove you to both venues, is pleading not guilty.
[2] Pseudonym used.
2You are both men in your early 50s, and both of you have relevant prior criminal records. Mr Aird, you had been released from a 13 year term of imprisonment approximately one month prior to these events. That sentence was imposed in relation to a spate of armed robberies committed on similar soft targets and when you were in possession of a firearm.
3At the time of the second armed robbery, before me, you Mr Kalamatas, were on bail for a dishonesty offence. You have pleaded guilty to that associated summary offence.
4It was sensibly conceded by both of your counsel that the only appropriate sentencing option is a term of immediate imprisonment with a non-parole period.
Circumstances of Offending
5Turning to the circumstances of the offending. Charge 1: On the evening of 2 June 2019, Ms Lo Bosco drove to Sharps Road in Tullamarine where she collected you both and then drove to Westend Cellars in Hadfield.
6The victim, Fang Wei Shei was alone inside the store. You, Mr Aird, entered the store armed with a baseball bat, whilst you, Mr Kalamatas remained as a lookout at the front of the store. Mr Aird made demands for money and handed over a Coles brand bag into which the victim placed approximately $900.
7Mr Aird then took a 700 ml bottle of Jim Beam, a bottle of Southern Comfort and some cigarette rolling papers. You told the victim not to contact the police. You both then left the store on foot and met up with Lo Bosco who was waiting in her vehicle for you to return.
8In total, approximately $1000 worth of goods was stolen including the cash. The incident was captured on CCTV.
9Charge 2: On 9 June 2019, you both, with the co-accused Ms Lo Bosco, attended the Bottlemart Liquor store in Pascoe Vale. The victim, Si Kieran Bowdidge was working alone inside the store.
10You, Mr Aird, and you, Mr Kalamatas, both had your faces covered, respectively with a cloth and a surgical mask. Mr Aird, you entered the store armed with a large kitchen knife while you Mr Kalamatas remained outside as a lookout.
11Mr Aird, you made demands for money and you were handed approximately $350. You then took a Corona beer carton containing approximately 100 packets of cigarettes from underneath the counter, along with the victim's personal Dell laptop computer, valued at $800.
12As you did this, Mr Kalamatas you entered the store and you warned Mr Aird that there were people coming in your direction. You, Mr Kalamatas, then picked up the money from the front counter and together, you exited the store.
13Mr Aird, you took a bottle Jamieson Whisky from the shelves as you exited and placed it into the Corona box. You then left the store with the Corona box and you Mr Aird warned the victim not to yell out. You then both proceeded to Lo Bosco in her vehicle.
14At the time of the second offence, you Mr Kalamatas, were on bail for offences of theft, having been bailed by police on 3 June 2019. That is the summary Charge 3, committing an indictable offence whilst on bail.
15To be clear, that is an offence committed in between these two armed robberies. Bail was entered in that intervening period.
16Both of you were arrested in the days following these events. Upon your arrest, Mr Aird, you dropped two blue latex gloves onto the ground, from your pockets. Those matched the gloves worn by you during the first armed robbery.
17Other clothing seized from both of your premises, matched the clothing worn during the armed robberies. When interviewed, each of you made full admissions to your involvement.
Sentencing Principles and Considerations
18The maximum penalty for an offence of armed robbery is 25 years imprisonment. The penalty for committing an indictable offence on bail is 30 penalty units or three months' imprisonment.
19Armed robbery is a Category 2 offence under s.3(1) of the Sentencing Act. There was no argument to suggest criteria under s.5(2)H(8e) applied to either accused in this matter.
20No victim impact statements were filed, however I accept as a matter of common sense, that these events would have been confronting and frightening for the victims.
21In particular, the victim of the second armed robbery was confronted with a man with his face covered and brandishing a knife. You took his personal property as well as items and money from the store.
22Armed robbery is a serious offence. This particular type of armed robbery is prevalent. The prevalence is amply demonstrated here by one of the workers telling you there was not much money in the till because they had been robbed the night before.
23These are offences committed on soft-target premises, often as here where one person is working alone. They are targets in particular because of the easy access to alcohol, cigarettes and usually a decent amount of money in the till.
24In assessing the objective gravity of the offending here, in my view they are in the mid-range of examples of armed robbery. These offences were planned to some extent, the second more than the first, given the use of disguises, but both were pre-meditated to some extent as can be seen by the use of gloves during the first armed robbery.
25You both knew your roles, and you both knew you had a vehicle waiting for you. You, Mr Kalamatas, kept a lookout and in the second offence, you actively carried out that role by warning your co-offender and helping remove money from the counter.
26Mr Aird, you brandished weapons, and used those to threaten the store workers and extract goods. You warned not to call police or yell out. A modest amount of money and goods were taken in both cases, though reasonably typical values for these types of offences. Nothing has been recovered, including the laptop of the victim, Mr Bowdidge.
27General deterrence, denunciation and community protection loom large in the sentencing process for such offending. That is, I must impose a sentence which stops others from taking this easy option on a soft target in order to extract goods or money.
28I must express the community's disapproval of such behaviour and I must impose a sentence which protects members of the community from similar offending.
29In both of your cases, and especially yours, Mr Aird, specific deterrence is also an important consideration, given your histories.
30In both cases, the matter resolved very quickly, at a committal mention on 4 September 2019. That is a plea at the earliest opportunity. You both receive the full benefit of your early pleas.
31It has the utilitarian benefit of saving the time and expense of a criminal trial. It also saves the victims from reliving events which were no doubt distressing to them. In both of your cases, I accept it is an expression of remorse as reflected in some of your comments in the record of interview. You receive the full benefit of your pleas of guilty.
Ethan Aird – Personal Circumstances
32Turning to your personal circumstances, firstly Mr Aird. Along with submission from your counsel, I have received two psychiatric reports, one from Dr Danny Sullivan from 2008, and one recent report from Dr Sachin Jindal from 2020.
33More recently, I have also received a psychological report from Mr Neil Woodger, dated 1 May 2020. That report has been prepared in support of a compensation claim you are pursuing in relation to sexual abuse committed against you in Turana Youth Justice Detention Centre. I will return to that issue in due course.
34Those reports outline your history. There is some conflicting information but in summary, your history is as follows:
35You grew up in the north-western suburbs of Melbourne. Your parents divorced when you were a toddler and although you saw your father weekly for a period of time, that contact dropped away. You say you do not know him.
36Your mother was a woman who suffered osteo-arthritis and heart troubles and was in poor health. She commenced a relationship with another man who became your stepfather. He was a violent alcoholic, violent to your mother, and to you, the oldest child. At his hands, you were beaten and suffered significant physical abuse.
37In the meantime, you were at school and playing football with Hadfield Football Club. You reported to Dr Sullivan in 2008 and to Mr Jindal and Mr Woodger this year, that your football coach had molested you. You were 11 years old and the victim of a penetrative offence. You did not disclose that event until sometime later. You told Mr Woodger also, that a man who was an ex-policeman and had befriended your mother, also sexually abused you when you were 13.
38You left home at around that age. At around the same time, your mother separated from your stepfather. You have suffered some seizures from the age of around 14 and you were diagnosed with epilepsy in 1995. You have been on various epilepsy drugs over the years and you are currently medicated.
39You struggled at school and you were expelled in Year 8. You changed schools, repeated Year 9 and did manage to complete Year 10. You then worked as a labourer in various unskilled roles. You commenced using alcohol at age 10 and have used drugs intermittently, in particular, heroin. You have previously been on Suboxone.
40Alcohol was apparently a real problem for you until the birth of your first child. In the context of your difficult history and leaving home at a very young age, you were already using alcohol. You started committing criminal offences. You spent time in Turana from your early teens.
41You reported to Dr Jindal that in that setting as a 16 and 17 year old, you were sexually abused by prison guards. You have only disclosed that abuse in recent years and I note it did not appear in the report of Dr Sullivan nor in previous reasons for sentence.
42You gave evidence about that abuse in the Royal Commission hearings into institutional abuse. I am told, and I accept, that you have a civil claim on foot and you anticipate receiving damages which you have been told, may be in the vicinity of $150 to $200,000.
43The report of Mr Woodger goes to those issues. You describe to him being sexually assaulted by several officers including serious penetrative offences against you by two officers who you named. You were verbally threatened by one of those officers with a clear message not to disclose. According to Mr Woodger, one of those officers is a known abuser, the subject of other complaints to the Royal Commission.
44On testing, Mr Woodger concludes that you have suffered post-traumatic stress disorder, meeting all criteria of intrusive symptoms. He describes that ongoing condition as chronic. He says, while taking into account the pre-dating life events, that disorder is likely a direct result of the sexual abuse you suffered in Turana.
45He also concludes on testing, that you have disorders of depression, obsessive compulsive disorder and generalised anxiety. Those matters are reflected in the other reports of the two psychiatrists. Those conditions overlap with your PTSD and are described by Mr Woodger as unstable.
46On release from Turana, your drug use escalated to include marijuana, heroin, amphetamines and abusing prescription medication. You spent your first period of time in an adult custodial setting in Pentridge, when you were a 17 year old. You saw a lot of violence in that environment, including a murder. You reported being scared to even shower.
47You have spent a considerable amount of your life in custody. Most of your prior offending has been related to serious dishonesty and driving offences. As an 18 year old you were dealt with for escaping youth detention.
48I accept the submissions of your counsel that your personal history set a template for your adult life. I accept that your history as I have described, enlivens the principles outlined in Bugmy v The Queen (2013) 249 CLR 571. That is, your early experiences of dislocation in your family, physical and sexual abuse at the hands of your stepfather and your coach, living away from home from a very early age, then being sexually abused in the youth justice system, have left a mark on you which carry through into your adult life and remains with you, regardless of the effluxion of time.
49That mark, and its impact on you, remains relevant to my determination of the appropriate sentence, regardless of your long history of offending. I take it into account when assessing your moral culpability. It, to some extent, explains your descent into, and continued recourse to criminal behaviour.
50In that regard, I note also your report to both psychiatrists, of your past history of suicide attempts and depression. They both confirm those previous diagnoses of major depression and also a diagnosis of personality disorder with elements of impulsivity, mood instability and relationship difficulties.
51Those reports, and the report of Mr Woodger potentially raise the principles of R v Verdins (2007) 16 VR 269. As your counsel sensibly submitted, whether the impact of your early life reduces your moral culpability as a result of principles in Bugmy or Verdins is perhaps a moot point. I accept that submission in your case. The type of nexus referred to in Verdins would be difficult to establish, even more so when complicated by chronic drug-use. It was not specifically relied on as reducing your moral culpability.
52As I have said, however, I take into account your history, the early origins of your difficulties and the resulting impact on you and accept that Bugmy is enlivened. I give it full weight.
53I do also however, take into account the comments of the court in Bugmy to the effect that protection of the community remains an important consideration. Further, the general concept that factors in mitigation cannot be given disproportionate weight when dealing with serious offending.
54Turning to your prior offending which, as I have said, commenced in the context of your difficult early life and escalated to some serious offending. Your first burglary offences appear when you were approximately 20 years old. You served eight months of a 15 month maximum term.
55In November 1990, just shy of your 21st birthday, you were sentenced in this court to a maximum term of six years and six months' imprisonment, a minimum term of three years and three months for intentionally causing injury and recklessly causing serious injury.
56Your first armed robbery appears on your prior criminal record a month later, 12 December 1990, alongside a charge of intentionally or recklessly causing injury. You were sentenced to 18 months with a minimum of nine months, five of which was to be concurrent with the November sentence.
57In 1993, you received your first suspended sentence and a community based order for dishonesty matters. Those orders were interrupted by a further cause injury offence for which you served eight months' imprisonment. The community based order was cancelled.
58You returned to burglaries and assaults through 1994, 95 and 97 and received various short terms of imprisonment.
59In 1997 in this court, you were dealt with for five armed robberies, two attempted armed robberies and two assault with intent to rob. You received a term of four years imprisonment with a non-parole period of three years.
60There is a gap in your offending between 1997 and 2000. That period coincided with your longest relationship and the birth of your two daughters who are now 25 and 26 years of age.
61A further armed robbery was dealt with by way of a three year six month term of imprisonment with non-parole period of two years and six months in the year 2000.
62In 2004, you were sentenced to three years, six months imprisonment with a non-parole period of two years and three months' imprisonment for inciting.
63On 5 November 2008, you were before this court for your most serious prior offending. You were dealt with for five armed robberies, 12 charges of false imprisonment, arson, theft, handle stolen goods and being a prohibited person in possession of a firearm.
64That involved a series of serious offences committed over six days in November 2006. The targets were convenience stores, newsagents and petrol stations. You wore disguises and on each occasion, a firearm, including on one occasion, a pump action shot gun, was used to threaten the attendant.
65The false imprisonments related to some of the attendants and a number of customers who variously entered the location and were made to lie on the floor. That series of offending occurred within days of being released on parole from the 2004 sentence.
66On each of the armed robberies, you received seven years imprisonment with one year cumulative for each. The total sentence was one of 15 years with 11 years non-parole.
67On appeal, adjustment was made where there had been cumulation for false imprisonment of attendants who were the victims of the armed robberies. That appeal did not relate to the seven year sentences for the armed robberies.
68Your sentence was reduced to a term of 13 years six months imprisonment with a non-parole period of eight years and four months. At that time, you had served 1455 days of pre-sentence detention. An order for compensation was confirmed by the Court of Appeal.
69You spent your time in custody actively engaged in employment and education including obtaining your forklift white card and a horticulture certificate. You engaged with two psychologists during your time at Fulham Prison. You describe yourself in terms of drug-use, as being stable.
70You were released from sentence onto parole in 2017. I received a letter written by you detailing your recent experiences on being released. The contents, while potentially self-serving, were not challenged by the prosecution.
71You say, and I accept, you could not cope with the changes which had occurred in the world and you had limited resources. For example, you had never been on the internet. New terminology was unfamiliar to you. Your mother had died prior to your release. You had recently been through the Royal Commission hearings and you had few supports. Your mental health declined to a point you were suicidal with the resulting return to substance abuse. You handed yourself into police after approximately a month and parole was cancelled.
72The result was that you served the remainder of your 13 year six month term and were released approximately one month prior to this offending on 16 May 2019. You had served the better part of 17 years in custody.
73Your counsel relied on a lack of supports available to you on your release from custody in 2019 as explanation for your rapid descent to reoffending. That period, I accept, must be viewed in light of your broader history and lack of life skills and resources on which you had to draw.
74I note some of those matters were outlined by you in your record of interview and are now repeated in your letter.
75It should have been apparent to you in light of the 2017 release, that you needed to prepare for your release. Equally though, it should have been apparent to Corrections Victoria that you were someone who was becoming institutionalised, and would face real challenges on re-emerging into the community.
76Despite not being released on parole, in my view, it was incumbent on Corrections to ensure that you were supported prior to your release to obtain appropriate housing and financial means to maintain yourself.
77That is not to say nothing was provided. You did have a worker from Melbourne City Mission assigned to you as part of a contract to provide support for prisoners leaving custody. You were given clothing, $200 cash and a cheque for $700. You were taken to the Bridge Centre in Richmond where a referral was made to Vincent Care Housing and for social support.
78You were apparently surprised to learn that no Housing Commission application had been made on your behalf. That is disappointing, given time in custody, could have been used during an inevitable wait list. I can only encourage you to make such application now in anticipation of a delay.
79You were referred by Vincent Care to a rooming house in Tullamarine. You requested alternative accommodation at Vincent Care to avoid an anticipated drug using environment at the boarding house. You were given accommodation for two nights in a hotel on Sydney Road. You spent a night at a friend's, however, you felt a burden on her and you left. That night was, for you, a window to another world. You apparently regret moving from it so quickly.
80Your friend, a teacher, remains supportive of you and has offered you help when you are eventually released. Your spent time at the Sydney Road hotel and then moved to the boarding house. The environment there included six other men who were apparently ice users. You attempted not to engage. Clothes you had purchased were stolen within days. Another person accessed your bank account. You reported that to your Melbourne City Mission worker and the bank has now reimbursed you for that loss.
81You were struggling to get identification, you attempted to apply for Centrelink payments having been in a Disability pension since 2003, however you did not have a relationship with a GP who could provide relevant documentation. Some payments from Centrelink were apparently made available, however went directly to a housing provider.
82You returned to the Sydney Road hotel before sleeping rough. You made contact with the worker from Melbourne City Mission however could not obtain more practical support.
83You say you were prepared on release for an uphill climb, but at that point, you felt you were at rock bottom. Your drinking and drug use recommenced and your descent was rapid.
84I accept the period of transition immediately on release from custody is a period of high risk. Where that release follows a long period of incarceration, that risk if particularly acute.
85As your counsel rightly accepted, these issues are a double-edged sword for you, as several times in your history, most recently in 2017, you have demonstrated an inability to reintegrate into the community. That is despite long term psychological counselling during your last sentence.
86On release from the sentence I impose, you are likely to face the same challenges to some extent. You are now 51 years old. I take into account the fact that you serve your sentence in protection as a result of a request by you in 2003 to isolate yourself from prisoners in the mainstream prison population. I take into account time in protection tends to be more burdensome. I also accept the current situation regarding imprisonment in the setting of the COVID-19 pandemic is a more stressful and uncertain one.
87In particular, courses in custody which you have engaged with well in the past, are now limited. There exists a visitor ban and the potential for further lockdown if the virus enters the prison. There is a level of additional anxiety in the custodial setting for those reasons.
88All of those matters mean prison currently carries an additional burden. How long that lasts is also uncertain. I take those matters into account.
89In your case, you have serious and chronic pre-existing anxiety, depression, obsessive compulsive disorder and PTSD, all potentially exacerbated in the current environment.
90In your case, on the basis of the reports, in particular the report from Mr Woodger which outlines in more detail your specific difficulties in the custodial setting, given the past abuse in such setting, I accept that imprisonment is more onerous for you and may have a deleterious effect on your mental health.
91Your counsel submitted, and I accept that institutionalisation is a real issue in sentencing you. I note the comments of the Court of Appeal in DPP v Green [2020] VSCA 23 to the effect that it is in the interests of the community that the sentence imposed on an offender with a similar history and a real risk of long term institutionalisation, should be such as to enhance, rather than undermine rehabilitation prospects.[3]
[3]DPP v Green [2020] VSCA 23 at 93
92While there must be an obligation on the part of prison authorities to support you in preparing for your eventual release, you need to take active steps in custody, well in advance of that date, to do what you can to put arrangements in place.
93That will include whatever courses are available in custody towards adapting to the changed technological world, and towards general life skills, will include any steps towards housing, identification and medical assistance and the like.
94The change in your circumstances brought about by your disclosure of your past history of sexual abuse in the Youth Justice setting, is a significant difference for you and for your future, both psychologically and also potentially financially.
95Real care must be taken in the distribution to you of any damages payout and ensuring that money is not mishandled. It does, however, have some positive impact on you and what I view as your prospects of rehabilitation which must other have been viewed as poor.
96Support from your friend is a new circumstance for you, and I note also Dr Jindal's comments that the outward signs of your personality disorder are softening with age.
97Relevant persons in Corrections should be acutely aware of your past lack of success on release. In my view, you should be granted parole so that a firm supportive structure can be placed around you to avoid another repeat of these events and further risk to the community.
98I am going to impose a non-parole period with the hope and expectation that you will spend that time under the supervision of the Post Sentence Authority. Despite your poor history on parole, the community's interest is best served by you being granted parole so that such a support structure is in place.
99To that end, as I have said, there is a glimmer of hope on your horizon in the form of a likely pay-out in relation to your civil claim. You have plans in relation to that money including purchasing a car and caravan which would provide you with accommodation and security, both things you have not held independently for the better part of your life.
100Those goals, as well as pursuing your relationships with your daughters and grandchildren should provide you with real incentive.
George Kalamatis – Personal Circumstances
101Turning to Mr Kalamatas. In addition to submissions by your counsel, I have received a psychological report from Ms Carla Lechner from 2016 and a neuro-psychological report authored by Dr Warwick Brewer, dated 2017, which outline your history.
102You were born on 4 March 1969, you are now 51 years old. You grew up in the Strathmore area, in the north-western suburbs of Melbourne where you lived with both your parents and your two younger brothers who are twins.
103Your parents both worked full time, your mother in textiles and your father was a builder. You attended the local primary school. In your primary years, you engaged enthusiastically in sporting activities, in particular BMX bike-riding and skate boarding. Your childhood was a positive one.
104There have been a number of significant turning points in your life however. The first of those came when you were an 11 year old. You were a pedestrian and you were struck and seriously injured by a vehicle driven by a drunk driver. You sustained a closed-head injury and significant injuries to your left leg and pelvis.
105According to Ms Lechner, you sustained an acquired brain injury. You were treated at the Royal Children's Hospital initially in an induced coma for several days, and then as an inpatient for three months.
106When released from hospital, you were in a wheelchair for two months. You were in Grade 6 at that time. On discharge, you were unable to resume your life as a school student, requiring ongoing care at home and home tutoring for the following two years.
107You found it very difficult to concentrate and your progress was limited. You reported to Ms Lechner that: 'I had to re-learn a lot. I was very slow.' When you were 12 years old, your parents separated. Because you were full time at home you witnessed that deterioration of their marriage first-hand.
108While your mother and father remained living together largely, your father would often stay at a family property in Phillip Island.
109When you eventually returned to school, you found you were disconnected from both your classmates and your studies. You found it very difficult to engage with your learning and with your peers. This was at a formative time of your life, being your early teens. You struggled significantly.
110You commenced using cannabis when you were 15 years old. You were exposed to that drug by peers at school and no doubt, in the context of your difficulties, you went along with your peers to fit in and connect.
111You managed to complete at least part of Year 10, and to your credit, upon leaving school, you completed a mechanic's apprenticeship at Batman Institute in East Malvern for two years.
112When you were 18, you received a pay-out from TAC on account of the motor vehicle accident. With the input of your family, the funds were used to commence an auto mechanics business with a business partner.
113In September 1988 when you were 20, another turning point occurred in your life when your girlfriend who you had known for six years was killed in a motor vehicle accident. In those circumstances you resorted to an increased use of cannabis and alcohol.
114At the same time your business which had operated for approximately two years was experiencing financial difficulties and you found it difficult to maintain and somewhat overwhelming. In approximately January 1989, your business finally came to an end.
115Ongoing drug use saw you commence use of amphetamines which you reported assisted in calming you down. You commenced a plumbing apprenticeship in 1990 when you were 21 years old before commencing work in stonemasonry in approximately 1994 when you were 26.
116You remain successfully employed in that field for approximately seven years and you report achieving some sense of stability.
117However, your substance use and abuse in relation to cannabis, alcohol and amphetamines and methamphetamines was enduring throughout that period.
118In 2000 when you were 31 years old and in the context of a developing heroin addiction, you were diagnosed with schizophrenia. That condition is lifelong. You had one psychiatric admission and follow up treatment through Waratah Psychiatric Clinic in approximately 2006.
119You schizophrenia is apparently now well controlled with anti-psychotic medication. It has been managed and monitored by your treating general practitioner, Dr Marsh. At the time of the offending before me, you were medicated appropriately.
120You commenced using heroin, as I have said, at approximately the same time as your diagnosis of schizophrenia. Ms Lechner opines that this may have been in an attempt to manage your parlous mental health. You quickly developed an addiction to heroin and you have been using that drug intermittently for the following 20 years with some extended periods of abstinence. You are now on Suboxone.
121Following your diagnosis of schizophrenia, you worked with your brothers in concreting intermittently, however as a result of a back injury in 2005, you have been in receipt of Disability Support pension since 2007.
122Since that time, you have lived a fairly transient lifestyle with extended periods of homelessness. Those were the circumstances you were in at the time of this offending. You and Mr Aird met in that context. You had previously known each other through school.
123Mr Kalamatas, you too have a lengthy criminal history, though of a different kind to your co-offender. There are some matters in 1986 and 1992 where you were fined, however your real history commences in 2002. That timeframe coincides with what Ms Lechner described as your parlous mental health state, your diagnosis of schizophrenia and your heavy drug and alcohol consumption.
124Your relevant history includes convictions for recklessly cause injury, assault, shoplifting, a range of dishonesty matters, driving matters, possession of various weapons and a variety of possession and use of drugs.
125Your offending throughout the early 2000s culminated in you being placed on a community based order in 2005. You were given a second opportunity to complete that order in 2006 and it appears you did so.
126The conditions of that order included continuing with psychiatric counselling as well as drug and alcohol assessment and treatment. Your offending however, continued, and you appeared most years for offending. The most serious of which was trafficking amphetamine in 2011 where you received a 12 month sentence wholly suspended.
127You were given the opportunity to undertake community correction orders in 2014, 15 and 16 and on appeal to this court in 2017, you were again placed on a community correction order, however, this too, was breached. Those orders all included conditions directed at drug, alcohol and mental health assessment and treatment.
128You have served short-terms of imprisonment in the past, most recently as a result of the breach of CCO you served 45 days which was concurrent with an earlier sentence of one month imprisonment. That is the longest period you have spent in custody. Of note, you have no prior offences of armed robbery.
129Ms Lechner, who assessed you in relation to offending in 2016, described you at that stage, as being socially and emotionally immature. She said:
'He is impulsive in nature with no real inhibitor-button. He tends to act first and (maybe) think later. He does not anticipate or evaluate consequences. This could in part be due to his brain injury.'
130She noted the pressure you reported from your then-co-offenders. She opined that your involvement in that offending related to poor judgment, reasoning and decision-making skills which are further undermined by drug use and your vulnerability to the influence of others who may manipulate you.
131On testing, you were found to be in the borderline to low average range intellectually. Dr Brewer notes comments from your general practitioner of 44 years, to the effect that you are gullible, particularly for exploitation by others who influence you into illegal activities.
132Dr Brewer confirms you to be functioning in the borderline range, with, what he described as chronic problems with higher level socio-emotional functioning including poor self-monitoring, poor impulsive inhibition, judgment and reasoning skills, reported vulnerability to pressure and peer influence and little appreciation of the impact of your behaviour on others and also cognitive emotional and social immaturity.
133He says the overall picture is consistent with a mild to moderate acquired brain injury, consistent with the early childhood head injury and now exacerbated by chronic substance abuse.
134I note, however, that Dr Brewer states with respect to your offending, the overall weight of evidence suggests it is not so much your cognitive vulnerabilities per se, that have contributed; rather it is the compounding impact of substance abuse and your emerging mental illness on your initial compromised socio-emotional maturation which leaves you behaving much like that expected from an early adolescent. He states you are a moderate to high risk of re-offending.
135This is your first period in custody. I am told it has been difficult. In terms of assessing your prospects of rehabilitation, I note the number of certificates I have received reflecting courses you have engaged in during your remand as well as clean urine screens. Your prospects of rehabilitation are of course linked to your ability to withstand drug use, but I accept they are reasonable.
136In submissions, your counsel advanced argument in relation to Verdins. That was not conceded by the prosecution. Disentanglement of your mental health history, as I have described, outlined by Dr Brewer, from your drug use history is difficult.
137Dr Brewer states your mild acquired brain injury leaves you more vulnerable, to a mild extent, to the impact of illicit substances and alcohol, relative to substance-abusing peers without an ABI. I accept the submission by your counsel that despite your drug-use, I must still take into account your acquired brain injury and diagnosis of schizophrenia in considering the appropriate sentence regardless of the overlay of drug use.
138I do take those matters into account and I take into account the description of you and your cognitive vulnerabilities are outlined in the reports to which I have referred. Those matters, in my mind, do tend towards some reduction of your moral culpability and some reduction of the weight given to specific deterrence in your case. However, I accept the complication of your ongoing substance abuse in the face of your existing criminal record means that moderation must be limited.
139In assessing your moral culpability for this offending, I also take into account your profile which I have just outlined and, in particular, your vulnerability to influence. I accept it is relevant in relation to you and to how you became involved in this offending. So much is reflected in your record of interview.
140I accept that this offending is, as your counsel submitted, and 'outlier' or out-of-character when I consider your prior criminal offending and your involvement in it may, to some extent, be explained by that profile. I take that into account in sentencing you.
141To be clear though, although I make that finding and take it into account in sentencing Mr Kalamatas, I also accept that Mr Aird had no knowledge of Mr Kalamatas' psychiatric or mental health profile.
142There is no suggestion that Mr Kalamatas' will was in any way overborne by Mr Aird. The fact that Mr Kalamatas is generally a person who is easily influenced or encouraged, is not a feature of aggravation in respect to Mr Aird. Counsel for Mr Kalamatas accepted that once involved in the offending, Mr Kalamatas was then a willing participant who benefited from the spoils.
143I refer to and repeat my comments regarding the impact of COVID-19 on the terms of imprisonment, and imprisonment generally at the moment. Mr Kalamatas, you too, have pre-existing difficulties which are likely to be exacerbated in an environment of increased anxiety in the custodial setting, in a time when family cannot visit you and when your previous good involvement in courses is not possible.
144You are a person, as I have described, with diagnosed and recognised mental health issues which may cause prison to be more onerous for you.
145I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
146The key words are, 'unjustifiable difference.' That is because parity takes into account, considerations of the offending and your roles in that offending, but it must also take into account your personal circumstances which include your age, relevant prior criminal history, your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes as it will here.
147I take into account those different past histories which I have outlined. I take into account the roles played in this offending. It was accepted by your counsel, Mr Aird, that there is no issue with regard to roles, namely that you played a more active role. It was accepted on your behalf on the plea, Mr Aird, that any sentence I impose will be a disparate one, taking into account your particularly relevant history and your recent release from custody after a lengthy term of imprisonment for similar offending.
148In determining the length of sentence in relation to both of you, I accept these offences occurred over a short period of time and were committed under the same operating circumstances and motivation. Nevertheless, in my view, there must be some cumulation. I repeat, you both receive the benefit of your very early plea of guilty and the full admissions and remorse you have both expressed in your interviews, and since.
149The sentences I impose will be as follows:
150On Charge 1, of armed robbery, Mr Aird you are convicted and sentenced to a term of four years and two months imprisonment;
151On Charge 2, of armed robbery, you are convicted and sentenced to a period of four years and four months' imprisonment.
15212 months of the sentence on Charge 1 will be cumulative on Charge 2 which is the base sentence. The result is a total effective sentence of five years and four months imprisonment.
153I direct that you serve a non-parole period of four years and two months' imprisonment before becoming eligible for parole. I declare, in your case, that you have served 344 days of pre-sentence detention and that that period should be reckoned as having been served in relation to this sentence.
154But for your plea of guilty, the sentence I would have imposed would have been one of seven years and three months' imprisonment with a non-parole period of six years. You can have a seat thank you.
155Mr Kalamatas, in your case, on Charge 1 of armed robbery, you are convicted and sentenced to two years and ten months' imprisonment;
156On Charge 2, you are convicted and sentenced to three years' imprisonment.
157On the summary charge you are convicted and sentenced to one month imprisonment.
158In relation to cumulation, I direct that eight months imprisonment from the term of imprisonment relevant to Charge 1, be cumulative on the base sentence which is the sentence for Charge 2.
159The total effective sentence therefore, is a term of three years and eight months' imprisonment. I direct that you are to serve two years and two months imprisonment before becoming eligible for parole.
160I declare in relation to this sentence, that you have already served 345 days imprisonment.
161But for your plea of guilty, the sentence I would have imposed would have been one of five years' imprisonment with a non-parole period of three years and six months.
162I think, Mr Roper, there were some ancillary orders. I have got a note that they are orders for disposal and forfeiture that were not opposed.
163MR ROPER: I believe drafts of those were e-lodged Your Honour.
164HER HONOUR: I think that is right. Any issues to raise, counsel?
165MR ROPER: Not from me, Your Honour.
166HER HONOUR: Mr Terry or Ms Ljubicic?
167COUNSEL: No, Your Honour.
168HER HONOUR: All right. I believe that the link may cut out at two o'clock
Mr Aird and Mr Kalamatas. The only thing I need to do is sign the orders including the disposal and forfeiture orders, so that will all be forthcoming and I will finalise the sentence orders which will obviously then be available to the prison authorities.169ACCUSED AIRD: (Indistinct).
170HER HONOUR: I did not hear that, sorry? We have lost the link. I am not sure if you heard it Mr Terry, and whether you want me to hear it. I don't know what was said. Mr Roper is trying to say something.
171MR ROPER: I was just looking to see if I had a copy of them with me, but I did not, and I wasn't game to call out to you.
172HER HONOUR: We are back Mr Roper, so I am not sure whether you were raising something. James, have we got those e-lodged, the ‑ ‑ ‑
173ASSOCIATE: I am just looking at that now.
174HER HONOUR: My associate is just checking that those were e-lodged. I seem to remember that they were.
175MR ROPER: Yes, Your Honour, I just wasn't - I just - I just haven't got a hard copy of that draft of those orders with me and ‑ ‑ ‑
176HER HONOUR: They do not appear to be on our e-lodged system.
177MR ROPER: I see. If I could go and perhaps just follow that up with my instructor, Your Honour.
178HER HONOUR: Yes, well if you follow that up and if your instructor could communicate to my associate soon.
179MR ROPER: I imagine it might - unless it might relate to things like the gloves that were found at the time, and perhaps some clothing items. I just don't recall whether there was a weapon.
180HER HONOUR: I don't know that they were ‑ ‑ ‑
181MR ROPER: I don't believe so.
182HER HONOUR: Yes. The prosecution opening doesn't give me any details, but look, if you would follow that up and have your instructor contact my associate within the next hour.
183MR ROPER: Yes, and the other parties. All right, Your Honour. I can do that.
184HER HONOUR: Thanks very much. All right, thanks very much counsel for your assistance. We will now adjourn. Thank you.
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