Director of Public Prosecutions v Arora

[2017] VCC 289

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00502

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAURAV ARORA

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2017
DATE OF SENTENCE:	21 March 2017
CASE MAY BE CITED AS:	DPP v Arora
MEDIUM NEUTRAL CITATION:	[2017] VCC 289

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr P. Casey	Rainer Martini & Associates

HIS HONOUR:

1Guarav Arora, in June 2014 you lost your job.  You were in financial difficulty and facing eviction in 2015.  Your wife held a good job but your expenses including supporting your parents in India, significant childcare fees and rent, together with your gambling on poker machines and drinking, put you in a perilous financial position.

2It seems you had a deep sense of responsibility to be the financial provider for your family.  By August 2015 you were desperate.  You had loans from friends who were asking for repayment.  Your rent was due.  As you later explained to the police, you went to the house of a friend thinking of breaking in and stealing jewellery.  Ultimately you did go to the house.  It is of concern that you took with you gloves and a knife.

3You approached the house, knocked on the door to see if the coast was clear, as it were.  However the female of the couple who were friends with you answered the door.  She was working from home that day, something it seems, you were not expecting.  You spoke to her of work opportunities but your real intent was to get jewellery and money. 

4As I indicated, it is of concern you brought a knife with you.  You produced the knife to your female friend demanding money and jewellery.  She was immediately in shock, pleading with you not to hurt her.  Understandably she commenced to cry.  You then cracked and stopped what you were doing.  You asked her to take the knife from you saying you did not want to hurt her.

5You explained to the police later that you then apologised and did so over and over.  You did not want her to tell anyone.  You explained to her your financial predicament and according to you, she was sympathetic.

6However the police did become involved and despite the victim indicating initially that she did not want the matter to proceed to charges, the matter has proceeded and you have pleaded guilty to one charge of attempted armed robbery.

7Your interview with the police was entirely confessional and replete with remorse.

8All offending involving dangerous weapons is serious offending.  Putting someone through such an ordeal in their own home is likewise very troubling.  However this was criminal behaviour that you retreated from within a very short time.  Your expressions of regret and remorse were instant.

9Your planning, as explained in your interview, reveals that it was not an instantaneous loss of perspective, but the speed of bringing it to an end is revealing of the depths of your desperation at the time.  Your true moral character came through.  I have mentioned your deep remorse and shame and it appears to me that you have continued in that vein to this point.

10You have no prior criminal history and can call on your previous good character in asking for mercy.

11You are now 36 years old.  You were born in India where your parents and sister still lives.  You were close to your parents and have taken on financial responsibilities for them, especially in respect of medical expenses, it seems, for your father.

12You completed a degree in commerce in Delhi before migrating to Australia in 2003 to further your studies.  You obtained a Masters in IT completing that in 2005.  You have worked in Australia from your arrival with telecommunications companies.  You were made redundant in June 2014 which set in train your deterioration.

13However you secured work in September 2015 juts one month on from this offending.  You remain in this job and have done well.  Overall your work history is to your credit.  I will return to this issue of employment and considering the question of whether to punish you with conviction or without recording a conviction.

14You met your wife in Australia.  She is employed I am told, at Peter McAllen in nuclear medicine.  She is shortly to move to another research position.  You have one child aged 3.

15Your concerns about your financial position, once you were unemployed from June 2014, saw you refer by your general practitioner to a psychologist.  The report from the psychologist Dr Davidson indicates you saw him weekly in July 2015 and then twice after the offending in August 2015.  You did not tell him or explain to him your offending.  You explained your desperate problems, financial problems but did not go on to also add your problems with gambling or drinking.

16Dr Davidson wrote as follows:

"During his sessions with me, he mentioned he was experiencing anxiety, worry, poor sleep, reduced appetite, hyper arousal, anhedonia, loss of weight, impaired concentration, irritability, occasional fatigue, catastrophic thinking and is socially withdrawn.  Additionally he mentions intense feelings of shame and worthlessness and hopelessness.

In April this year he mentioned he was having thoughts of deliberately cutting himself with a knife or throwing himself in front of a train and he rang a suicide hotline for support.  At the time of consultation, he mentioned occasional fleeting suicidal thoughts.  Given this information, he was diagnosed with adjustment disorder with mixed anxiety and depressed mood.  Importantly he said he will require ongoing counselling."

17Subsequent to your offending, you were referred to a psychiatrist, Dr Antony.  His letter to the general practitioner who referred you to him is dated 12 September 2015 and was of significant help.

18He wrote of your problems in these terms:

19That you did advise him of all your financial challenges, being debts that you owed for travelling on East Link and having to pay fines that amounts keep increasing by the passing of time when you did not pay them, that ended up in court.  There were other financial challenges from being unemployed.  This caused you to increase your gambling and drinking.

20You were gambling $200-300 at a time on most days.  You would go gambling with a fixed amount in mind but that would not hold and you would go to the ATM and try and chase your losses.

21He said you did not tell your wife about the extent of gambling and you found yourself pre-occupied with it and gambled multiple times a day.

22Dr Antony also speaks of your increased alcohol use at the time and that you felt the need to drink more and more.  In fact, waking with shakes and episodes of delirium.  These are concerning matters.

23I am told today that you no longer gamble having simply stopped, having the shock of all this and your drinking is now moderate.

24He indicated that the pattern that I have just described, this is Dr Antony, continued during 2015, describing your financial challenges mounted and your distress with it.

25As to your relationship he reported that your relationship was good after it recovered from the shock of these offences.

26Dr Antony described that you look after the finances.  Your wife confirmed to
Dr Antony that she has no access to bank accounts and that you manage them.  Whether that is still the position or not, I am not sure.  But in any event, you told him you were not comfortable discussing financial challenges with your wife because it was traditional for the man in the family to look after that.

27Anyway, you need to consider all of that because Mr Arora, it brought you to the position that you are currently in now.  That is, not being able to manage financial problems by talking them through.

28You spoke of your offending to Dr Antony and how only at that point could you face telling your wife of your financial troubles.

29He diagnosed you with adjustment disorder, alcohol use disorder and gambling disorder and set out a number of recommendations relating to psycho-education, medications, psychological intervention and seeking specialist mental health if risk factors arose.  That was a helpful report and you should yourself keep it well in mind.

30You have undertaken further psychological treatment with Ms Precann and I read her report as to your three sessions of cognitive behavioural treatment.  In my view, you will require further psychological help into the future.

31Your wife remains supportive but she did not want to enter into court with you.  You and she are financially stable now and purchasing a unit.  So this aberration in your life of August 2015 appears behind you.  However I just emphasised, it is a matter for you, you ought not let your wife down again by embarking on this sort of behaviour.  You no longer gamble or drink to excesses as I have explained.

32Given your brief but serious criminality, your instant and comprehensive remorse, your previous good character and your now improved circumstances and prospects for the future, your counsel urged a community corrections order ought be imposed and no more.  The prosecution agreed with that submission and so do I.

33A community corrections order can meet all sentencing purposes of denunciation of this conduct, deterrence to others while simultaneously facilitating your continued reform.

34The required assessment unsurprisingly concluded that you are suitable for a community corrections order.

35The issue in dispute between the parties was whether the community corrections order ought be with or without conviction. Mr Casey, your counsel contended that a proper analysis of all the circumstances and the factors set out in s.8 of the Sentencing Act led to this; that this is one of the few cases where a without conviction was just and appropriate for this level of offending.  It would be a merciful outcome but such a penalty expressed in practical terms, the sentencing principle of parsimony, that is the least punitive sentence but still met all sentencing considerations.

36In essence, Mr Casey contended that the brevity of the offences, how it ended and why, the immediate remorse and continued contrition, meant that the nature and gravity of the offence did not preclude a non-conviction outcome.

37The prosecution submitted the planning and the use of the knife and the breaching of trust of the friendship and the great fear engendered meant that the gravity was such as to lead to a conviction with a community corrections order.

38Mr Casey went on to emphasise that your predicament and your crime in fact stem from unemployment, and thus you should not be or not have a life-long burden of a conviction hampering ongoing employment.  He submitted you were over qualified for your job and would likely seek other more appropriate professions or job or career if the opportunity presented.  The conviction would make it hard in a competitive employment market.  Evidence shows that you were unemployed for over a year in 2014 to 2015.

39The prosecution contended that there was no solid evidence of all of this difficulty with employment and yours was a job that did not have requirement of being a fit and proper person. Those submissions require analysis of the relevant section, the relevant words of s.8. The Victorian provision is and exercising the discretion whether or not to record a conviction at court must have regard to all the circumstances of the case including (c), the impact of recording of a conviction on the offender's economic or social well-being or on his or her employment prospects.

40Victorian legislation does not have terms like in other states which read, as it does in Queensland, the impact of recording a conviction, whether that will have or what will occur if there is a conviction on the chances of employment.  I put that inelegantly but the difference is that in Victoria there is - the words are, I must consider amongst other things, the impact of recording of a conviction on your employment prospects.

41Accordingly, although long-term implications of employment prospects are hard to predict, for someone like you in the job that you have and perhaps the beginnings of a career, it is likely to be a significant burden if you are convicted.  Thus, in the exercise of discretion, it does weigh in favour of not recording conviction.

42In my view, the discretion should not just be enlivened on the basis that you are someone who has embarked on a career, that if you are convicted, will not disqualify you immediately from practicing in that career.  A conviction is also a great burden and could have the practical effect of disqualifying you from many jobs, although the types of jobs that you are likely to have will not have a fit and proper person requirement.

43In this regard, I am mindful of the always competitive employment market that is prejudiced against someone who has a conviction, such that you might be put to the bottom of the queue and thus, in practical terms you are punished well into the future and well after the purposes of an appropriate and just punishment have been met.

44Beyond this, imposing too great a punishment has the potential to stand in the way of further rehabilitation.  That is, that if you return to unemployment, it may put at risk all the steps that you have already undertaken to rehabilitate.

45Although I have taken into account as I must all the circumstances, and this is an offence involving a knife, I am mindful what was said by Justice Chernoff in the Victorian Court of Appeal in the well-known case that concerns whether a conviction should be imposed or not in R v Kendazzo & Ors where he said at paragraph 15,

"The seriousness of the offence should not wholly dictate the punishment that is appropriate".

46In my view, this is an example of the crime of attempted armed robbery that is at the lowest end of the scale, thus permitting me to consider when I look at all the circumstances, that punishment including conviction is not required.  I exercise my discretion not to impose a conviction upon you.

47Thus for committing the crime of attempted armed robbery without conviction, you are placed on a community corrections order that will last for 18 months.  You must undertake 150 hours of unpaid community work.  You must also have treatment; assessment and treatment for mental health problems.

48I am not going to require you in all the circumstances to be under supervision, but as I will explain to you very shortly, there is a high requirement to co-operate with the Office of Corrections throughout.

49Shortly a document will be produced and if you sign that, it will bring the matter here today to an end, but I will explain to you in detail all the requirements both those that attach to every community corrections order and those that attach specifically to you.

50Now had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a term of imprisonment of four months and added a community corrections order of two years to that.  Thus your plea of guilty was of significant value.

51Is there anything else required?

52MS HAMILL:  No, Your Honour.

53HIS HONOUR:  Thank you.  Mr Arora, the order that I have made will last for 18 months from today until 20 September 2018.  These mandatory conditions apply to everyone on a community corrections order.

54The first is important.  You must not commit another offence for which you can be imprisoned during the time that the order is in force.  So that is plain.  Do not do anything because almost everything you can imagine is punishable by imprisonment, whether you get that or not.  So just return to the ways that you were prior to this aberration.  But if you commit another offence, well you will come back here and the mercy that I have shown will not be repeated.

55You must comply with the obligations and requirements under the sentencing regulations.  They will need to take a photograph to make sure they know who you are and all the rest of it.

56You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days of the order.  That Community Corrections Centre in your case is at Ringwood, Level 1, 2 Bond Street, Ringwood.  The address is here, you go there.  In two clear working days, tomorrow or the next.

57You must let the Community Corrections officer know within two clear working days if you change your address.  Well that is possible.  Or your job, that is also possible.  The point here is, co-operate with them and keep them informed.

58Do not leave Victoria without getting permission to do so.  That is plain enough.  You must obey all lawful instructions and directions.  So that applies to everyone and it applies to you.

59What applies particularly to you are these program conditions.  You must perform 150 hours of unpaid community work over the 18 month period.  I should not have to emphasise this with you.  About 150 hours is required, it is not voluntary or anything of that sort.  You cannot say, "Oh I have got to look after my dad" or childcare or work or something.  You have just got to be there.  Stay to the end.  Not everyone will have appropriate dedication to the task.  It turns up to that.  But just put those people out of your mind and get your part of it done.  Get the 150 hours done as quickly as possible.

60In addition, you must undergo mental health assessments and treatment as directed by the regional manager.  I would expect that that would be making you go back to your GP for a mental health plan to take it up with the psychologists that are best for you.  You must do that as well.  Do you follow?  And persevere with that.

61Now once the order is produced with the appropriate charge on it, then if you sign it, that will bring the matter to an end.  Do you follow?  We just need to get the right charge on the document.

62All right.  Come out of the dock please, Mr Arora and come up to the table where Mr Casey is and have a look at that and sign that if you consent to this order.  All that is on that document is what I read out to you, Mr Arora but it now importantly says that the charge that you were found guilty of was attempted armed robbery.  It is without conviction.  Is there anything further?

63MR CASEY:  No, Your Honour.

64MS HAMILL:  No, Your Honour.

65HIS HONOUR:  Thank you.  I thank counsel for their considerable assistance.

66MR CASEY:  Thank you, Your Honour.

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