Director of Public Prosecutions v Andy

[2017] VCC 642

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00803

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN ARTHUR ANDY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 May 2017
CASE MAY BE CITED AS:	DPP v Andy
MEDIUM NEUTRAL CITATION:	[2017] VCC 642

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil
For the Accused	Mr G. Thomas

HIS HONOUR:

1Stephen Andy, you have pleaded guilty to one charge of assisting an offender, one charge of damaging property, one charge of theft and one charge of common law assault.  Those crimes carry maximum penalties of five years, ten years, ten years and five years respectively.

2You are now 35 years of age, which is the time when people in your situation often turn your lives around.  You pleaded guilty to a settled indictment and I accepted that was at the first reasonable opportunity and offers were made some time ago.

3I accept that in the present circumstances, you have appropriate remorse, so far as the assault charge is concerned and you obviously must get the utilitarian benefit of that plea of guilty.

4The circumstances of the offending can be described in fairly short compass because quite a deal of it actually related to your brother, who I previously sentenced.  I might say at this stage that insofar as parity is concerned, I sentenced your brother, Matthew back in February of this year to a very significant sentence.  However, that was a consolidation of, from recollection, four indictments, dozens of Magistrates' Court matters and far more serious offending than for which I am to sentence you.  You were involved in one of the matters for which I sentenced him, and realistically, parity would be an imponderable in this particular situation.     

5You do have a very extensive criminal history and there is no need in me reciting that.  You have clearly had ice and other drug problems over a significant period of time, together with what clearly would seem to be anger management difficulties.

6In any event, on 19 April 2016, you and your brother, Matthew were driving around in Dandenong North and essentially a decision was made, clearly by your brother, Matthew, but with your assistance to take the coin machine from a laundromat.  It seems to be a crime for which your brother, Matthew has something of a penchant from what I have seen in recent times.

7In any event, you cased the place.  Matthew went in with a screwdriver and got into an altercation and you were not responsible for that.  He then went back to the car in which you were, took out a jemmy bar and entered the laundromat.  I accept for these sentencing purposes that that, as I did with Matthew, that that jemmy bar was not taken for the purposes of an armed robbery.  It was taken to leaver or endeavour to leaver the coin machine off the wall.

8Unbeknownst to you, I accept Matthew, when you went inside, committed an armed robbery on a man and took his mobile phone.  You clearly walked into the laundromat at the time that that was occurring and were clearly aware of what your brother had done.  That gives rise to the charge of assist an offender when you drove him away afterwards to avoid him being detected.

9The coin box was removed from the wall, which gives rise to the charge of criminal damage because a couple of boards were broken, and then contents of the coin box were stolen.

10When leaving the premises, the more nasty of the offences in my personal view was that a lady, Ms Perumal, was standing across the road next to her car.  She used her mobile phone to take photographs of the car registration and was trying to photograph you and your brother.  You got out of the car, walked towards here.  She panicked, got into her car and called police, and she then drove off in the direction of a nearby friend's house.

11You returned to the car and your brother, Matthew drove, following her for approximately 200 metres before ramming into her car, and I might interpolate that I have seen him do that before too.  She stopped and you drove up to the side of the car.  You were in the passenger seat.  Your brother, Matthew then made a shooting gesture with his hand.  She feared that she would be killed.

12Your assault to which you plead guilty is the overall aspect of it.  As I say, I dealt with Matthew for driving like that before and in this situation, yours is the gesture with the hand and the terrifying of the lady.  It is a significant crime, meaning that will attract a custodial prison sentence by its self.

13I have before me a victim impact statement where she describes the ongoing fear, paranoia, uneasiness and psychological difficulties she has had with that action.  I am sure that the time in a drugged state, you probably would not have realised the full significance of what was occurring, but it is to be hoped that you know realise that to behave that way to a perfectly innocent woman who was just trying to do the right thing and leave her with a lifetime of dealing with that sort of post-traumatic stress, if that is what it can be described as, is serious indeed and I trust that you would have learnt from that, and never behave in a way such as that again.

14In any event, in overall sense, the offending series calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  In this set of circumstances, the appropriate punishment would be the difficult aspect of it.

15The history of it is that you were arrested early last year.  You were then released on bail.  You were using ice.  You clearly became psychotic in terms of drug use.  You were hearing voices and it was in those circumstances that this offending was committed.  You then, at that point in time, had other matters outstanding and eventually in July of last year, you were sentenced to a straight sentence of 12 months' imprisonment.  The period of 71 days was declared as having been served in that sentence.  That sentence expired in April of this year, so accordingly for these matters, you now only have 32 days of
pre-sentence detention.

16There is clearly a very much a lost opportunity for concurrency in these circumstances, where the offer to plead to what you pleaded to was made a significant time ago.

17I do not need, I think, in this situation to go through your background.  You are still a young Aboriginal man.  You participated in Koori Court this morning and I know how difficult that would be for you, as indeed, I know how difficult it was for your brother.  I thought that you showed a determination and I found your positivity in terms of turning your life around somewhat impressive and it has given me hope that you are going to be able to do so.  It is quite clear that you cannot continue to behave in the way that you have in more recent times, and this was pointed out fairly clearly.  It is a one way ticket if you do keep offending in that way.

18What gives me encouragement is that you do have accommodation with your mother who remains supportive of you, that you do have a partner that you can go and live with her as well.  You are viewing the prospect of being able to get access to your children.  Your partner has step-children and you are going to be in a position of responsibility.

19It is quite clear that you are capable of working and fortunately, as with your brother actually, you have been able to somehow retain your physical health despite the drug abuse et cetera over the years.  You went five years with no offending when you were working and you described how you enjoyed that work and it gave you a sense of, I think Aunty Di might have said, a sense of dignity and self-pride.

20You have now been drug free I understand for a period of some 12 months.  This admission was made, a very succinct submission, that a community corrections order would be appropriate and  think that is right.  I have no had you assessed and you have been found to be acceptable on the conditions that were described.  That is, supervision, the drug addiction and programs to reduce reoffending.  In this situation, the learning place, Wulgunggo Ngalu, I think would be of great benefit to you as you could spend a period of time with other young Aboriginal men in a culturally safe environment to enable you to go back into the workforce and to look after a family.  That is a matter for Corrections and I would strongly ask that that be considered.

21In the end, because of all these circumstances, the prospect of your rehabilitation are entirely within your hands.  The risk of you reoffending depends upon that rehabilitation and on what you have described her and the support that you have, I am confident that you are going to be able to achieve that.

22Taking all those matters into account, on the four charges, sentence of imprisonment for a period of 32 days.  I direct that 32 days be reckoned as having been served under that sentence.  If you agree, you are then to commence a community corrections order.  That will be for a period of 18 months with supervision, drug addiction and programs to reduce reoffending.  Obviously it will be with conviction.

23To make this simple, on the matter of committing an indictable offence whilst on bail, you are sentenced to be imprisoned for a period of seven days and I direct that seven days be reckoned as having been served under that sentence, and that should clear the slates, shouldn't it gentlemen.

24MR CECIL:  Section 6AAA, Your Honour.

25HIS HONOUR:  I forgot about that.  That has just changed, hasn't it.  In almost the last month or so.  Yes.  No, it used to be that you did not do it where it was a combined sentence, but they changed it about three weeks ago.  Well, it is sort of nonsense in this scenario.  All right.  Having given the matter anxious consideration or so, but for your plea of guilty, I would have sentenced you to be imprisonment for a period of 18 months with a minimum term of 12.  I point out for the record that I think that is a nonsense having to do that in this situation.  Meaningless. 

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