Director of Public Prosecutions v Aitken
[2022] VCC 2089
•24 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01433
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY AITKEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2022 | |
DATE OF SENTENCE: | 24 November 2022 | |
CASE MAY BE CITED AS: | DPP v Aitken | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2089 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery. Unlicensed driving. 34 years old at time, 37 now. Some criminal history. Delay during which accused absconded and committed further alleged offences. Warrant issued in September 2021 executed in late September 2022. Co-accused pleaded to armed robbery; guilty plea by this accused to robbery. Worboyes v The Queen [2021] VSCA 169. Parity issues. Disadvantage; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 - limb 5. Increased custodial burden by virtue of partner’s health difficulties and difficulties re 7-year-old child. Exceptional third-party hardship - Markovic v The Queen [2010] VSCA 105; 30 VR 589
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Weinman (at Plea) Mr S. Eshow (for Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit | Papa Hughes Lawyers |
HIS HONOUR:
1Bradley Aitken, you have pleaded guilty to one charge of robbery, as well as a summary offence of unlicenced driving. You have admitted the sizeable enough criminal history.
2
You were born in December of 1984 and you are 37 years old now. You were 34 years of age at the time of the offences back in
February of 2019.
3The agreed summary sets out the correct maximum penalty. Robbery carries a 15 year maximum term of imprisonment.
Facts
4Mr Weinman appeared to prosecute at the plea last Thursday and he relied upon a written summary of prosecution opening that was dated 22 July of 2021.
5Your counsel Mr Ranjit told me it was an agreed summary and so that was marked as Exhibit A.
6As the facts are agreed I see no need to set them all out in my reasons. I have already dealt with the co-accused, Mr Castaldi, so I am aware of what took place. My reasons for sentence are marked as Exhibit B on the plea. Of course, I am dealing with you for robbery, not armed robbery, and that's a key difference. I do not lose sight of that. I will sentence pursuant to the agreed summary in your matter.
7I note the Crown in their email of 18 November advised the court of one alteration to the agreed summary and that related to the date that you became unlicenced. It does not alter the picture at all. You were not licenced to drive at the time. I have incorporated that email as part of Exhibit A.
8By way then of very brief summary, on 4 February of 2019, you were the driver of a red VW Polo that went past the milk bar in Centenary Avenue, Harkness, which is out near Melton. You did a U-turn and you travelled back past the same milk bar. There was plenty of parking immediately outside the milk bar which you did not select. You did not select it as whatever you may assert to the Psychologist, Ms Mynard, a plan had been hatched between you and the passenger, Mr Castaldi, to rob that milk bar. You were the driver.
9You parked away from the scene and you did that so as to disconnect this vehicle that you were driving from the criminal event that you knew was shortly to take place. That was because the vehicle could be linked back to your wife and hence to you.
10Your offsider Castaldi got out of the car and he walked to the milk bar. Once inside, though you were complicit in a plan to rob whoever was behind the counter, Castaldi in fact produced a knife and robbed the female owner at knifepoint. He took some cigarettes and some cash. He came back to the car then and you left the scene. So the use of the knife by him was a departure from the agreed plan. It fell outside the scope of any agreement and it was action taken by Castaldi for which you were not complicit. You do not fall to be sentenced for the use of the knife or for armed robbery, or for any impact arising from an armed robbery.
11Unbeknownst to you and Castaldi though, there was CCTV camera footage available in the adjacent street where you had parked. Though you had parked there to obviously disconnect the car from the robbery that you knew was to take place, that CCTV footage was your undoing. That footage showed that car being the red Polo Hatchback. It was your partner's vehicle. It showed Castaldi emerge from and return to the passenger seat. So plainly enough there was a second player involved in this event.
12Police executed a warrant at your address on 6 February of 2019. Your wife told the police that you were not home. That wasn't true. You were found hiding in the backyard and were arrested.
13Castaldi was arrested on the same day. Mr Castaldi, after a few false starts in the interview, ultimately admitted his role in the armed robbery. He, was not prepared to name the driver.
14You were also interviewed on 6 February and you told a pack of lies about the car being leant to Castaldi. You went on to swear on your son's life that you were telling the police the truth – see Question 441. You said that you were not the driver and you were in no way implicated and you would not dream of losing your son over something such as this - see Question 396. You were scathing of Castaldi, for falsely linking you to this criminal event. Of course he had done no such thing. He had kept to the unwritten code and kept your name out of it.
15The next day the police obtained some CCTV footage from another location, this time a service station. You were shown emerging from your car minutes after this robbery. Other footage that they obtained showed the movement of the car before the robbery in the direction of Castaldi's house and driving away from that location. This led then to your second arrest on 14 February of 2019. You were interviewed again and told a further assortment of lies. Just different lies. This time you said you had been the driver but you knew nothing of any plan to rob the milk bar. You parked away from the milk bar you said as Castaldi was meeting his drug dealer and that person would not have taken kindly to a second person turning up.
16You painted Castaldi's actions as a frolic of his own, one in which you were in no way joined. So, though they were different lies you again denied any involvement or complicity in any robbery. Well, ‘blind Freddy’ would know that you were complicit, given the way the vehicle was parked. You had dug yourself into a very deep hole indeed, one you could never have climbed out of, with your earlier demonstrable lies about not being in the car at all.
17The Crown ultimately decided to accept your plea to the robbery and that is the crime I am sentencing you for.
18
The summary sets out a chronology. You went into custody on
14 February of 2019, and spent 62 days in custody before being bailed in
April of 2019. The plea was listed in September of last year and you did yourself no favours at all when you chose not to appear on 13 September of last year. A warrant for your arrest was then issued.
19That was only executed on 28 September this year. You were arrested on that warrant and in relation to other charges which remain pending. Bail has been refused on all matters. There was a listing of those other matters relating to fresh charged allegations, and I have been told a moment ago that that is listed for a sentence indication hearing on 1 February of next year.
20So much then for really what is only a short summary. I sentence pursuant to the more detailed agreed statement placed before me.
Impact
21There is no impact statement in this case. Nor was there in the case of Castaldi. Of course he was aware of the use of a knife. You were not complicit in that act, but you were complicit in a demand being made with use of force or threat of force. You knew that it was to be a soft target robbery. You must have had a sense that there would be some fear occasioned to someone within the milk bar. Well there was of course. But no doubt it was heightened by the production of the knife, which does not fall at your feet in any shape or form.
22There is no long term impact here that I am aware of, but I am sure it was a frightening event and in fact the robbery that you had contemplated would have been as well, as is conceded in the written submissions.
In Mitigation
23Mr Ranjit conducted the plea on your behalf on 17 November and had prepared a detailed outline of written submissions, dated 15 November. He strangely sought to rely also upon submissions that had been prepared at the time of the earlier plea listing in September of last year. These were the submissions prepared by different counsel, Mr Kozlowski, who at that stage appeared. There were some inconsistencies between the two sets of written submissions and further, of course your absconding and alleged re-offending eroded to some extent some of those earlier submissions which for instance mentioned your performance on the CISP bail and citedthe complete absence of any pending matters.
24They also referenced documents filed at that earlier time where there have obviously been some alterations since. I think it really would have been preferable for Mr Ranjit to have gone back to the drawing board and set out his own single set of comprehensive sentencing submissions.
25Instead, I had to work out what he was relying upon from the earlier written submissions and what he had abandoned and to do that I had to actually take him to portions of the earlier submissions that had not been referenced in the plea. By the end of the plea though, I had a comprehensive understanding of the matters that were actually now being relied upon on your behalf.
26So, he relied upon the submissions dated 15 November of this year, as well as Mr Kozlowski's submissions or portions of them dated 9 September of 2021. He relied on the earlier filed documents including a Centrelink document, a letter from Jillian Thatcher, two from Dr Peter Zammit and the CISP progress report. Also the more recently filed documents being a report from Ms Mynard, Psychologist, another letter from Dr Zammit, relating predominantly to your partner's condition, as well as a letter from the paediatrician relating to your seven year old son's difficult predicament.
27Mr Ranjit, either by reference to the written materials that I've mentioned or in the oral submissions made to me, informed the court about your personal and family background including details of your educational and employment history. He detailed the issues that you have had in the past with illegal drugs. He told me about the health predicament of your wife and also your son.
28He made some submissions as to the relative objective gravity of the offending and the matters of sentencing principle that came into play here. He made some submissions about your prospects of rehabilitation.
29He conceded that your past criminal history had some relevance to my task. He took me to the issue of parity of sentence, but he emphasised some of the differences here including the nature of the charge that you had pleaded guilty to.
30He relied upon the following matters in mitigation:
·Your guilty plea in the midst of the global pandemic.
·The presence of some limited remorse.
·Your disadvantaged background (Bugmy[1]).
·The application of limb 5 of the well-known case of Verdins[2]. He retreated from any reliance on limb 6.
·The impacts of COVID-19 in the short time when you had been held during the pandemic and should you remain in prison in relation to this matter into the future.
·Exceptional family hardship; and
·the increased burden upon you arising from your knowledge of your wife and son's predicament in your absence.
[1] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
[2] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
31Though delay was mentioned very prominently in Mr Kozlowski's written submissions, which had seemingly been incorporated by Mr Ranjit in his written submissions, in the running of the plea he to a large extent abandoned that submission and for good reason, given the fact of the failure to appear last year, the pending charges that had arisen and also the fact that the Crown had been prepared to accept a plea to robbery in your case, since early June of 2020.
32Mr Ranjit was arguing that a Community Corrections Order in combination with a prison term equating to your existing pre-sentence detention, would be an available disposition here. Failing that, a combination-type sentence with your ultimate release onto a Community Corrections Order and the least favoured option, a head sentence with a non-parole period.
33He has maintained those submissions today, as to the availability of a combination order notwithstanding the CCO assessment that has been received. The report describes you as not being suitable for such an order, at least in the view of the assessment officer.
Prosecution
34Mr Weinman who appeared on behalf of the Director of Public Prosecutions made some brief submissions as to sentence including the relevant purposes in play here. He argued that your absconding demonstrated in some manner, your attitude to the victim. I do not agree that it does any such thing actually.
35The prosecution took no issue with the availability of a combination type sentence. The court had at its disposal, the availability if needed of a period of 12 months over and above your existing pre-sentence detention.
36I am not bound by submissions made by either party as to the appropriate penalty in this case. I have to exercise my own discretion in your case. I will return in one moment to discuss the various submissions made on your behalf, as well as the matters raised by the prosecution.
Background
37Firstly though, I will turn briefly to a background.
38I have no reason not to accept what I have been told about your background. I see no need to restate it.
39
Very briefly then, you were born in December of 1984. You are now
37 years of age, turning 38 soon enough.
40
You were an only child and your parents separated when you were eight or
nine years of age. Each parent re-partnered and your mother has had two more children, your two half-sisters.
41What had been a happy enough childhood seemingly disintegrated when your parents separated when you were about eight, and you sustained some violence at the hands of your mother.
42The Department of Human Services removed you and also as I understand it, one of your half-sisters from your mother's care. You spent a large amount of time in residential care in group homes and that was not at all satisfactory. See paragraph 10 of the Kozlowski submissions.
43Though you had some rocky times with your parents and ceased all contact after the Department of Human Services' intervention, you had at one point resumed contact with your mother. You also had some contact with your father as well, but presently you are unsure as to whether he is still alive.
44Your counsel also referred to some of the things occurring in that period when you were in state care, including having sexual relationships with staff whose job it was to actually protect and support you and not to corrupt you.
45You had a fragmented education to Year 9 level. Also, very early use of a variety of drugs. You progressed to a range of drugs with an entrenched heroin addiction from your early 20s. You have made some efforts to curb your addiction over the years, but there have been relapses and this offending seemingly coincided with a relapse. You have had a pretty sporadic work history. See paragraphs 15-17.
46Most recently as I understand it, you have worked as a landscape gardener, but COVID-19 interrupted that employment.
47You have been the carer for your wife who has been unwell for many years. She is in very poor health. The written documents spell out some of the serious health issues that she labours under. See paragraph 20. So too the more recently filed letter from Dr Zammit. I don't think it's referenced in any of the written materials but I accept that she's on a waiting list for some serious heart surgery, and she's easily fatigued.
48Dr Zammit speaks of the importance of your role in the house. You have a young son together, Jordon, and he is seven years of age. He has got some worrying issues himself that are spoken of in the report from the paediatrician. You also have an 18-year-old child from a previous relationship whom you have had some contact with.
49You have a criminal history and it is conceded to be of some relevance to my task. Well, of course it is. I am not going to waste your time or mine conducting a line by line audit of that criminal history. There are some serious enough offences there as I am sure you know. You have been sent to prison from time to time. You have received a suspended sentences. You have received many other court orders including Community Corrections Orders and you have breached a number of court orders.
50As to that prior criminal history I want you to understand, and I have mentioned this in the plea, that you do not fall to be sentenced a second time for any of that past offending. That is not the way it works. You have served those sentences which were imposed and the criminal history does not remove the need for me to pass proportionate sentences here. It does not aggravate the matters that I am actually dealing with, but I do have to make judgments about your prospects of rehabilitation and the need to deter you and also protect the community from you.
51I cannot ignore your past history. Nor can I ignore your inadequate performance on the various Community Corrections Orders, that is spoken of in the assessment report. However, as to most of that criminal history, if I might observe, we see far longer histories, sometimes involving much more serious offending, especially by those who have been admitted to care as children or adolescents.
52Your most serious past offending was dealt with in 2010. That was undoubtedly very serious. In September of 2021, had the plea proceeded before me as it should have, your counsel would have been able to tell me at that stage that you had remained out of trouble since committing the offence I am dealing with in early 2019. That can no longer be said, I have been told about a number of pending matters committed earlier.
53Now whether you will be pleading guilty or not guilty has not yet been determined, so I certainly can't find against you that you have actually committed further offences whilst on bail. As I have indicated, those matters are listed for a sentence indication hearing next year. You are in custody for those matters. The existence of those matters impedes your counsel from stating what could have been said previously, that there were no matters pending. There are and you are in custody for those matters I have no control over that.
54I have also learnt from the Community Corrections Order assessment report, that there are two outstanding breach proceedings listed in relation to past Community Corrections Orders, where warrants have been issued following your failure to appear. So, the chronology is really not your friend in this case.
55Plainly though when I look at that history there are gaps in your offending and that gives me some sense that you have an ability to stay out of trouble. I pay some regard to your criminal history, but I must not let it dominate my task.
56I take into account your background as far as I am able to. I accept that your early background was one of some disadvantages, with issues at home upon the separation of your parents, some violence and then admission to care. Residential care and group homes were no replacement for the stability that we hope is provided in a family home, where one is surrounded with decent role models. Of course, at that stage in your life, your family home did not provide those things, which is why you were removed.
57But there was no doubt then some poor influences in residential care, including even from staff, which is a pretty unusual feature. I think your background of disadvantage is actually something I can take into account to a degree in this case. I do not think it set you up too well for adult life.
58An offender's circumstances and their experience during their own childhood and formative years must be considered in the sentencing process, not just out of some historical curiosity, but rather because the effects of disadvantage are likely to have profound and lasting consequences. In some cases, they can actually explain, but not excuse the offending. They do not do that here.
59Taking lifelong damage that is the result of childhood exposure to violence, or physical abuse or neglect into account when sentencing is the mark of a humane society. The effects of these things do not just diminish with the passage of time. They do actually leave their mark. Of course, our backgrounds shape us.
60You have had an unenviable early life and it really did not prepare you too well for adulthood in my judgment.
61It will always be a matter of what weight to attribute to this sort of evidence of a disadvantaged background. It will not have the same weight in every case, or the same way. Sometimes it can lead to a substantial reduction in moral culpability and also very sizeable reductions in the weight to be given to general and specific deterrence. That is not the position in this case at all.
62Sometimes it might be enough to take into account in a general way without any of those sizeable reductions and this is what your counsel is asking me to do and I will. The proper approach will depend on the nature and the extent of the disadvantage, the evidence in relation to it, the nexus if any, with the offending, though none is required, and also the nature of the crimes and the relative importance in a particular case of sentencing considerations including things such as deterrence, community protection and rehabilitation.
63I give full weight to your background in the way that phase is employed in cases such as Bugmy and Marrah[3]. I do take into account your background in a mitigatory fashion, though it plainly does not explain this offending in any way or bring about any sizeable reduction in culpability at all. So, I apply these Bugmy or Mara principles to my task and take into account your background in the manner contemplated by Mr Ranjit.
[3] Marrah v The Queen [2014] VSCA 119
64I turn then to consider the other matters raised by your counsel.
Guilty Plea
65The first of those is your guilty plea. It was not an early plea. The prosecution could confirm that which was spelt out in the emergency management documents, that the Crown were prepared to accept a plea to this offence of robbery, from as early as 4 June of 2020. You denied any complicity.
66The first defence submissions of Mr Kozlowski asserted that the case was a weak one. It really was not. Not at all. However, I do not want to get caught up on that point. Whatever the strength of the case, your guilty plea is of real significance. The strength or otherwise of the case against you does not impact at all upon the allowances made for your plea.
67By pleading guilty the community has been saved the time, the cost and the effort associated with the conduct of a full committal hearing or a trial. There was a submission only committal conducted here, so no witnesses were called, and your victim was spared the experience of giving evidence altogether.
68You have facilitated the course of justice. You have ultimately taken responsibility for your offending by pleading guilty. You have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus. We have a very large backlog of trials waiting in the wings to get on. We are working our way through that backlog. COVID-19 has disrupted the operations of the court. It disrupted your trial in July of 2020. It may well have done the same thing for the July 2021 listing date as well.
69Your guilty plea is worthy of significant extra weight in such a setting for the reasons set out in the decision of Worboyes[4]. Your case is not part of that backlog. So, I take those various matters into account mitigation.
[4] Worboyes v The Queen [2021] VSCA 169
Remorse
70As to remorse, on two occasions you lied to the police in the course of the interviews. That is not an aggravating feature of course. You were denying presence in the first interview and then denying any complicity in the second. And that was the position right up until you decided to plead guilty to the robbery. Well, those interviews were a long, long time ago, and I suppose anyone can panic and tell lies in an interview.
71Regrettably though, far more recently, you maintained some of that same rubbish in your discussions with Ms Mynard. Saying that you had no idea that any crime was going to be committed at all. See paragraph 39, 40 and 47. Well it was silly stuff, because of course you did. You cannot traverse the plea, you have admitted by your plea that you were complicit in what you believed to be a robbery. And of course you were playing a critical role in that offence. You were the driver. Nor was your account in the Community Corrections Order assessment interview suggestive of remorse when viewed, alongside what you had told Ms Mynard recently.
72Mr Ranjit modified his submissions as to remorse, owing to the stance that you had taken with Ms Mynard. He argued that really, I could find some limited remorse from your plea. Well, I do not doubt that you wish you had not committed this crime. It has had large impacts on you and your wife and your child. You regret those impacts, but that is not remorse. I cannot see much evidence of genuine remorse in this case at all.
Rehabilitation
73I am prepared to infer from your ultimate guilty plea the existence of some very limited remorse in this case, which I do take into account in your favour.
74I turn now to your prospects of rehabilitation. I have already spoken of the criminal history. It is not the longest of histories before the court, and it is not all doom and gloom. There have been some gaps in your offending.
75Your most serious offending was well over a decade ago. The crime I am dealing with occurred in February of 2019 over three and a half years ago. You have the matters which are outstanding and you made the foolish decision not to appear last year on the plea. That undid some of the earlier good work as you had engaged reasonably on the CISP bail, and you were and still are playing a vital role in your wife's health care.
76I do not doubt that this would have contributed to that foolish decision to abscond and not to appear last year. You have a seven-year-old son as well. He has got some significant issues that are spoken of in that report. You have many good reasons to stay out of trouble. And it is apparent that you play an important role within the house, for the reasons spoken of in the medical materials.
77Some of those same reasons existed in 2019. Your wife's poor health predicament did not impede your decision to offend. Her state it would seem has worsened and your son has been diagnosed with some significant issues.
78You have had only some sporadic history of employment and long term issues with a variety of drugs of dependence. Long term drug use always casts a bit of a shadow over a person's future prospects. It does in your case.
79
Your ongoing rehabilitation will depend to a large extent upon your continuing abstinence from illegal drugs. Your history of non-compliance with
Community Corrections Orders is spelt out in the assessment report. The sentence imposed by the court will serve to deter you to a degree. So the
62 days you spent by way of pre-sentence detention initially and the period since being arrested in September of this year. All up you have spent a
hundred and nineteen days in custody.
80I certainly will not write you off. Your counsel suggested that your prospects fell between guarded and reasonable. Ultimately, I believe you have reasonable prospects of rehabilitation but they will be subject to your abstaining from illegal drug use. That has been something of a problem over the years, and only time will tell if you can abstain. I hope you can, for if you cannot, your prospects will dip very sharply indeed.
Delay
81Let me turn briefly to the issue of delay. I do it briefly as I do not think the delay works greatly in your favour in this case, and your counsel abandoned the delay submission almost entirely.
82This case really could have settled on the current terms years ago, but it did not and that was owing to your stance. You denied complicity and it was your right to do exactly that. Then a year later you sought a sentence indication. There is a lot of water under the bridge since the offending in February of 2019 and a fair bit of that has been produced by your own efforts.
83But there was also COVID-19 which struck in 2020, and which has intruded on the progress of the matter. That was certainly something out of your control. Then it was entirely in your control to make the decision to abscond last year. That has kept the matter on hold for an additional 14 months or so. That was your choice, and a pretty foolish one, really.
84
In that period of delay of your own making, it would still probably have worked in your favour if you had stayed out of trouble, but you have not, because I have been told about those pending matters. So, there is the inability to say that there is nothing pending. There is. So there is not much in the delay point at all, as was ultimately conceded by Mr Ranjit. I accept that having the matter over your head for such a period is a worrying thing. You must have been wondering when the axe would fall, especially since your decision not to appear last year. There was uncertainty produced and that cannot have been easy, but it is a matter of very limited weight here given the events of the last
14 months. That was your choice not to appear.
COVID-19
85Your counsel made very little of the COVID-19 issues, which had previously been flagged very conspicuously in Mr Kozlowski's written submissions. That was no doubt because the pre-sentence detention in 2019 was pre-pandemic and you have only been in custody since September of this year, which relates to a timeframe where the COVID-19 impact on prisoners has to a significant extent improved. Things have picked up in custody on the COVID front, and many of the limitations or the restrictions have eased.
86Visits have resumed and so too, courses and programs. Your wife was unwell and that is the reason why she has not been visiting. I was told that there is some issue with your son visiting. I do not feel I have any real sense of why that is so. What lies ahead in the future for prisoners is impossible for me to determine. I cannot speculate about that. Those whose job it is to run the prisons, will be able to reflect on the impact of the past and ongoing limitations on a case by case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose.
87I cannot know if that will take place or not and I make it clear I certainly do not proceed on the assumption that it will. To take that into account in that way, would be for me to contemplate future executive action which is prohibited. It is my sense that the prisons have tended to lag a bit behind the community in terms of COVID restrictions being lifted and they also tend to bring them back in more rapidly, which makes perfect sense in the circumstances.
88It is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming several months. There are still lockdowns in place from time to time and they produce uncertainty. I also note that COVID-19 infections seem to be on the rise again in the community just presently.
89
I take into account the increased burden imposed by the response to
COVID-19 in the matters that I have described. Your counsel made it clear that this was not a large point and in fact, as I say, it had not been raised until I did so at the end of the submissions, so I could hear what was said on that topic.
Family Hardship
90I turn then to the issue of third-party hardship.
91I have considered the materials touching upon your wife and child, and re-read that material since the date of the plea. You have been her carer for some years. She is most unwell and she has needs which you cater to. She is to a degree, dependent on your help. She is grappling with her own serious health issues, and also the developing issues with your young son. For me to take into account the impact upon either your wife or child, I would need to be satisfied that the circumstances are truly exceptional. It is a most stringent test and it exists for good reason. There is almost always significant impact caused by sending a person to prison. There is nothing exceptional about that.
92
I do not doubt that life would be tougher, particularly for your wife, and each will miss you as well, but that is not the test. The test is much higher than that. However, having looked at the matters afresh, especially the recent report of
Dr Zammit, read in conjunction with the report of the paediatrician, I am actually satisfied that the high Markovic[5] threshold is reached in this case. In those circumstances I am able to take into account that third party hardship and predominantly it is that which will be experienced by your wife. Part of her burden is managing Jordan as well, and I accept that this combined with her medical conditions, should be assessed as exceptional.
[5] Markovic v The Queen [2010] VSCA 105; 30 VR 589
93But this finding of exceptional family hardship is not a finding that prison must not be imposed. It means no such thing. A finding of exceptional circumstances is not some ‘passport to freedom’. It is simply one factor that can be taken to account in mitigation. It is another matter in mitigation and it may bear upon the type of disposition itself, or for that matter the duration of the prison term imposed, if one is required.
94Nor can I ignore that the offence was committed at a time when she was already in pretty poor health. If you are to remain in prison, then I accept also that your prison burden would undoubtedly be further increased by your understandable concern about the predicament of your wife and child in your absence and I take that into account in your favour.
Parity
95I turn then to the principle of parity of sentence.
96I must pay some regard to the principle of parity of sentence. This is a pretty bald and simplified statement of it, but all things being equal, co-offenders should receive the same or at least similar sentences. Any differences in sentence must be capable of rational explanation.
97Well all things are seldom equal and they are plainly not equal here. One obvious difference is that Castaldi was dealt with for a more serious offence, armed robbery. That offence has a higher maximum penalty. He was the person who entered the milk bar but of course you were part of that team. You had a different role, but you had no knowledge of the knife.
98You were much the same age and each of you have long enough criminal histories, his is perhaps a longer one, but not necessarily more serious and he was on a Community Corrections Order at the time. On the other hand, he had some matters existing in mitigation which do not exist in your case. For instance, he had genuine remorse, a very genuine written apology and he had the earliest of pleas with admissions made after a few false starts in his police interview.
99No consideration was given in his case to the impact of COVID-19 upon the burden of imprisonment or to the Worboyes heightened plea discount as quite simply, COVID-19 did not even exist in our worst nightmares back when I sentenced him in 2019. Those things were not existing in mitigation in his case, but they exist now in yours. Plainly you must do better than him, but how much better?
100The outcome in his case really says nothing about the fine detail of the sentence required in your case. That question is only answered by my consideration of all the matters in mitigation and in aggravation placed before me.
101One matter in mitigation in your case for instance, is the third-party hardship that I have just commented on and that had no application in the sentencing task in Castaldi's case.
102
You bear in mind, when I pronounce sentence upon you, that I gave Castaldi three years and four months, or 40 months with a non-parole period of
22 months on the single charge of armed robbery.
Verdins
103Your counsel relied upon the report of Ms Mynard and in particular the diagnosis of post-traumatic stress disorder. Of course the report also set out details of your background, as well as treatment recommendations. Your counsel's written submissions spelt out reliance on two limbs of the well-known decision of Verdins but in the running of the plea he withdrew any reliance on the sixth limb, conceding that the evidence did not rise to that level.
104I do not see any need to set out the details of that report. I will make some allowance for limb 5 of Verdins. I accept that there is some increased prison burden arising here, owing to the mental health conditions spoke of. They are intertwined with the anxiety arising from the concern about your wife and child and I have taken those into account in a non-Verdins fashion as I have made plain a moment ago.
105I am not satisfied to the required degree that the sixth limb is enlivened here. There is likely to be some deterioration but the report does not spell out a serious risk of imprisonment having a significantly adverse impact on your mental health. Your counsel as I say withdrew the limb 6 argument in the running of the plea.
The Offence
106I turn then to the offence. I say offence, although there are two, but the licenced driving will barely be mentioned.
107Robbery is however an inherently serious offence and as conceded by your counsel. See paragraph 1. It has a 15-year maximum penalty. Now, it is not the most sophisticated of offences here. Soft target robberies seldom are. Robberies often enough involve almost no pre-planning and they can arise very spontaneously, almost in the moment. For instance, a demand being made of a person out on the street for their phone. I am not dealing with anything too spontaneous in this case. This was no minor example of the offence by any stretch of the imagination. It does not fall at the lowest level at all and that much was conceded.
108Plainly, there must have been some discussion between you and Castaldi as to what was to take place and where, and the roles of each of you. You were after all complicit in the offence of robbery. You were driving a car when you had no business driving at all. There are not many soft target robberies which involve what was essentially a getaway car, but this one did. Often enough they are committed solo. So here, plainly there was some pre-planning and that sets it well apart from the lowest level examples of the offence as again was readily conceded by Mr Ranjit. It is though, of course a mile removed from the most serious examples of the crime.
109Your culpability is not lowered by being the driver. That was your role as part of this two person team. What you were not a team member of was armed robbery and that is what ultimately took place inside the shop. That fell outside the scope of the arrangement. You must have envisaged a demand being made and force or threat of force being employed but not the use of any weapon. Well what you contemplated was serious enough and you have some experience yourself with being a victim of crime. You were complicit in what you knew to be a serious crime.
110The fact of the daytime use of your partner's car with registration plates and then driving onto the service station after are referenced in the earlier set of written submissions is not germane to an assessment of the level of seriousness of the offence.
111You were parking distant from the shop to deliberately remove the connection between the robbery and the car that could be linked to you. That was the plan. The fact that you did not factor in the potential availability of CCTV footage linking the car, is not a matter in mitigation at all. So, this was certainly not spontaneous offending. Some robberies are, but this one most certainly was not. It was no minor example of robbery for the reasons that I have spelt out.
Purposes
112I am required to consider a number of matters, including the nature and the gravity of the offending, the impact of the crimes, and the maximum penalties. I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I give that some weight. I cannot ignore however the other purposes of sentencing including specific and general deterrence, protection of the community, denunciation and punishment.
113You must be punished justly and proportionately.
114I must also denounce your conduct.
115Then there is deterrence both general and specific. I must seek to deter you from offending in the future. That principal of specific deterrence is of some importance here.
116General deterrence is also an important purpose of sentencing. This court must send a loud message to other individuals in the community who might be minded to commit this sort of offence. That message must be sent to those who may consider engaging in the sort of conduct that you were engaged in. General deterrence is an important sentencing purpose in this sort of case and that is conceded.
117Community protection is also of some importance.
118I have to pay regard to current sentencing practices that is not a simple controlling factor. It is just one of the many matters that I must have regard to.
119
The Sentencing Advisory Council robbery snapshot No. 105 is very dated and does not provide any assistance at all. I have looked at the more
up-to-date online statistics as well as the cases listed in the relevant sections of the Judicial College of Victoria Sentencing Manual. None of these other cases are precedents. There are differences in conduct and in personal background and criminal history. All the many things which explain a given sentence varies between different instances. Statistics have inherent limitations.
120I have to deal with you for your crime, taking into account the matters of mitigation and aggravation in this case. So the things known to me. I must take into account your personal circumstances. The statistics provide no answer to my task at all.
Totality
121I have to take into account the principle of totality of sentence.
122I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you, and to ensure that the overall effect is commensurate with your overall criminality.
123Your criminality was high here. The fact is the unlicenced driving, as I say I have scarcely mentioned it, and that is because it pales almost into insignificance when viewed against the robbery charge.
124Prison is always a disposition of last resort. Your counsel concedes that I must impose a term of imprisonment, but argued that a suitably conditioned Community Corrections Order in combination with the hundred and nineteen days of pre-sentence detention that you have served would achieve all the purposes of sentencing.
125The Director of Public Prosecutions conceded that a combination type order was open here and expressed no view as to whether there was a need for further time to be served in prison. It was a matter for the court they argued and the Director of Public Prosecutions is of course not free to make a submission as to range.
126As I said earlier, I am not bound by the sentencing submissions made by either your counsel or by the Crown. What I have to is exercise my own sentencing discretion in this case.
127
The decision of Boulton[6] was briefly mentioned. It challenged Judges to reconsider and to revisit the conventional wisdom as to when it is appropriate and necessary to actually confine an individual. The Court of Appeal stated that the sentencing landscape had changed dramatically, and they indicated that sometimes it would be open to place a person on such an order, even for offending that previously might have been visited with a substantial term of imprisonment. Sometimes it will be open, sometimes it will not be. The
pre-condition to such an outcome was if it was appropriate in the particular circumstances of the particular case.
[6] Boulton v The Queen [2014] VSCA 342; 46 VR 308
128Your conduct undoubtedly calls for a term of imprisonment. There is not any doubt about that. You have served only a very modest period in prison. This court must not pass a more severe sentence that is necessary to achieve the purposes in this case.
129I have had you assessed for your suitability for a Community Corrections Order and the report is not at all helpful to you. You were judged to be unsuitable for such an order for the reasons that are set out within the report. Mr Ranjit is critical seemingly of some of those reasons, or at least of the omissions from the report of the things that you have done.
130That judgment as to your unsuitability for an order does not bind me however. But when I reflect on the nature of this offending and the nature of your past lack of response to court orders, and the fact of your being on remand for other outstanding matters and I take into account your lack of compliance with past Community Corrections Orders, I accept that the judgment spoken of as to unsuitability in that report is sensibly made.
131I am not satisfied that a combination type sentence involving a prison component equating to your existing pre-sentence detention is open to me in the sound exercise of my sentence indiscretion. That would pay inadequate weight to deterrence, both specific and general, as well as denunciation and punishment. You have only served 119 days and it is not enough.
132
Nor do I believe it is open to me to impose a combination type sentence with a larger prison component. You are unsuitable for a Community Corrections Order, and I accept the reasons voiced there. I have no control over your existing remand. You are in custody in relation to two other matters, that are listed for sentence indication hearing in February of next year. There are also warrants outstanding in relation to two breaches of Community Corrections Orders and I have also your past track record in relation to
Community Corrections Orders where you have not completed one of them.
133Ultimately, I have taken the view that that style of combination order is not available to me in this case. You have breached many of those orders and then you have backed it up by failing to appear 14 months ago on this matter. You have those other matters outstanding. I do not believe you are suitable for a Community Corrections Order, even one in combination with a larger prison sentence.
134I will pass a head sentence and a non-parole period and at each stage I will have regard to the matters in mitigation, including third party hardship.
135The sentence imposed is very much reduced and the ratio of the non-parole period to the head sentence really would be more reflective of someone with excellent prospects of rehabilitation, which I do not believe that you have. These reductions are very much influenced by the Markovic considerations which I have spoken of, that is to say the third party hardship arising in this case.
136I will have you stand up then please if you would.
Sentence
137
On the charge of robbery (Charge 1), I convict and sentence you to
16 months' imprisonment.
138On the summary offence of unlicenced driving, I convict and sentence you to three days' imprisonment.
Total Effective Sentence
139That sentence on the unlicenced driving will run concurrently with the base sentence, leading to a total effective sentence of 16 months' imprisonment.
Non-Parole Period
140As indicated, I will fix a non-parole period. I must not speculate as to whether you will be released or not. That has nothing to do with me. That will be in the hands of the Adult Parole Board.
141I fix the period of seven months, during which you will not be eligible for release on parole.
Section 18
142You have spent already the period of a hundred and nineteen days in custody on this matter, and that period is declared as having already been served under this sentence.
Section 6AAA
143I have also told you that I have taken into your account your guilty plea. If you had pleaded not guilty and been found guilty by a jury of, well I say these matters, but the reality is only the robbery would have been before a jury, I would have convicted and sentenced you to three years' imprisonment and fixed a non-parole period of 22 months. That is what you would have got if you had pleaded not guilty and been found guilty of this robbery.
144That declaration is to be noted in the records of the court. Grab a set then for a moment, I will see if there are any other matters that I need to deal with. I don't think there were any other ancillary orders were there in this case?
145MR ESHOW: May it please the court, Eshow Your Honour for the prosecution.
146HIS HONOUR: Yes.
147MR ESHOW: I know Your Honour has a discretionary power to disqualify the defendant from obtaining a driver's licence.
148HIS HONOUR: I'm aware of that, I have opted not to make any order against his licence.
149MR ESHOW: If Your Honour please.
150HIS HONOUR: But otherwise there's no other matters? No. Anything else from your perspective Mr Ranjit?
151MR RANJIT: Nothing further for me Your Honour, if Your Honour pleases.
152HIS HONOUR: All right. Well look, you have got some other things happening I think Mr Ranjit today, but you'll go down and see your client.
153MR RANJIT: I will Your Honour, yes I'll speak to my client straight after.
154HIS HONOUR: All right well, Mr Aitken, Mr Ranjit will come down and see you downstairs and discuss what's happened here today and your rights in relation to it. What amounts to is this, it's a 16 month head sentence with a non-parole period of seven months and you've already got credit for a hundred and nineteen days, so he'll come and have a chat to you about your rights in relation to that. So, if Mr Aitken can be removed now then, please, thank you. What time are we - we're at two are we, 2 o'clock for the bail app. I'll see you at 2 o'clock then Mr Ranjit.
155MR RANJIT: If Your Honour pleases, yes.
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