Director of Public Prosecutions v Anderson

[2018] VCC 346

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02449

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEWAYNE ANDERSON

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2018
DATE OF SENTENCE:	20 March 2018
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2018] VCC 346

REASONS FOR SENTENCE
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Subject:  Attempted armed robbery
Catchwords:  Soft targets; Milk-bar
Legislation Cited:
Cases Cited:
Sentence:  3 years imprisonment with 20 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Goding
For the Accused	Ms A. Pyne

HER HONOUR:

Charges

1Dewayne Anderson, you have pleaded guilty to one charge of attempted armed robbery.  The maximum sentence for attempted armed robbery is 20 years' imprisonment.

Circumstances of offending

2The circumstances of your offending are set out in the prosecution opening.  On 24 September 2016, you attempted to rob a milk bar situated at 132 Forest Road in Ferntree Gully.  There is a residence attached to the milk bar, where the owners, Mr Tang and Ms Yang lived.

3On the day you attempted to rob the milk bar, Mr Tang was at the counter, while Ms Yang was out the back.  You entered the milk bar wearing a hoodie and approached the counter speaking in a loud, angry tone and pointing at Mr Tang.  As Mr Tang's English is not very good, he could not understand what you were saying.

4You stepped back from the counter and pulled a long kitchen knife from your pants and pointed it at the cash register.  Mr Tang understood the word, "Money", which you said at least twice.  You pointed the knife at the cash register and stabbed at it twice with the knife.  You continued yelling at him, making hand gestures, signalling money and pointing at the cash register.

5Ms Yang heard the commotion and went to see what was happening.  She observed you pulling out the knife and tapping the cash register.  Mr Tang told her in Mandarin to go outside and call the police.  She rang a friend, who assisted her in reporting the incident.

6In the meanwhile, you had left the milk bar empty handed.  Still images of you from the CCTV footage were circulated by the police.  As a result of this, two people recognised you and contacted the police.

7In early October 2016, you and your girlfriend moved to Queensland.  When the informant contacted you and advised you that a warrant had been issued for your arrest, you failed to return to Melbourne.

8On 21 September 2017, you attended court in New South Wales where a warrant for your arrest was executed.  An application for extradition to Victoria was granted and you have been in custody since then.

Defence submissions

9In his submissions on your behalf, your counsel provided the court with details of your personal history.  You clearly had a disadvantaged and turbulent childhood growing up in Mount Druitt in Sydney.  You were exposed to violence in your formative years and at home.  You were one of six children and your mother was an ex-drug addict who used severe discipline in the home.

10You were sexually abused when you were about eight.  Your schooling was disrupted.  You attended many different primary schools and three different high schools.  You left school in or after Year 10.

11At a young age, you fathered two children, both of whom sadly died.  You have a history of substance abuse, using cannabis when you were only ten.  Later, you moved onto heroin and amphetamines.  Most recently, you have been addicted to ice and you were under the influence of this drug when you committed the attempted armed robbery.

12You have committed a number of prior offences, including assault on an officer in the execution of their duty, resist arrest and assault occasionally actual body harm.

13Although it was not a mitigating matter, your counsel submitted that your drug dependency provided an explanation for your offending.  I accept that it does provide some explanation for your offending.

14The mitigating matters relied upon with respect to the circumstances of the offending are that nobody was physically injured in the attempted armed robbery, the offending was of a short duration, lasting approximately 30 seconds, you acted alone and left empty handed.

15The other mitigating matters relied on by your  counsel were:

·your plea of guilty, which saved the community the cost and inconvenience of a trial and indicated a degree of remorse;

·your disadvantaged background; the fact that you are relatively isolated in prison as your family lived interstate and have not contacted you;

·the fact that you had been in Port Phillip when a fire broke out late last year and you had spent three weeks in 23 hour lock down.

16In addition, while your counsel accepted that the court could be guarded about your prospects of rehabilitation, he relied on the following mitigating matters: 

·this would be your first significant sentence of imprisonment;

·your criminality was not entrenched, as you had not been in and out of gaol your entire adult life;

·you completed a drug course in 2009 after being released on parole and you had controlled your drug abuse for a period of many years after completing the course, only relapsing in 2014.

·you had a work history, which included working as a tiler, construction worker and you are presently working in the prison kitchen five days a week.

17It was also submitted that you had insight into the cause of your offending.  You had undertaken a six hour ice effects course while in gaol, an occupational health and safety course and a traffic course.  You were also on the waiting list for an extensive, intensive drug and alcohol course.

18Relying on these various mitigating matters, your counsel submitted that a period of imprisonment with a significant rehabilitative component was appropriate.  In particular, by this, he meant a sentence of imprisonment followed by a community corrections order.

Prosecution submissions

19However, the prosecutor submitted that a combination sentence was not appropriate, as your offending had been against a soft target, during which you had brandished the knife in a threatening matter.  You had priors for violent offences and at 30, you are not a young offender.

Sentencing remarks

20Would you please stand up?

21In sentencing you, I have taken all the mitigating matters referred to by your counsel into account.  However, even with an appropriate discount for your plea of guilty and allowing for your deprived background and all the other mitigating matters, I do not accept that a combination sentence is appropriate.

22Proprietors of milk bars should not have to live in fear that they will be the victim of an attempted armed robbery.  The CCTV footage showed you waving large knife around during the attempted armed robbery.  While there is no victim impact statement, it is hardly surprising that in their police statements, both victims referred to being frightened during the event.

23Given the prevalence of this offence, general deterrence is an important sentencing consideration.  The sentences handed down for such offences must deter others.

24However, in fixing your non-parole period, I have accepted that you are not without hope of rehabilitation.  In this respect, I note that you wrote a letter of apology to the victims that appeared to be genuine.

25Along with the other mitigating matters, I have taken into account these matters in reducing somewhat your non-parole period.

Sentence

26On the charge of attempted armed robbery, you are sentenced to three years' imprisonment.  I fix a non-parole period of 20 months.

27I declare, how many days pre-sentence detention?

28MS GODING:  One hundred and seventy-nine.  One hundred and seventy-nine.

29HER HONOUR:  One hundred and seventy-nine days of pre-sentence detention.  But for your plea of guilty, it would have been four years, to serve two years and six months.

30I make a forensic sample order pursuant to s.464SZ under the Crimes Act on the grounds it is in the public interest, and because of the serious nature of your offending.

31COUNSEL:  As the court pleases.

32HER HONOUR:  Is there anything arising from the sentence?

33MR PYNE:  No.

34MS GODING:  No, nothing.

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