Director of Public Prosecutions v Austin
[2013] VCC 944
•20 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-1300944
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER AUSTIN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2013 | |
DATE OF SENTENCE: | 20 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Austin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 944 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Picone | Office of Director for Public Prosecutions |
| For the Accused | Mr T Smurthwaite |
HIS HONOUR:
1 Christopher Donald Austin, you have pleaded guilty to two charges of armed robbery, and one charge of cultivation of a narcotic plant.
2 The crime of armed robbery carries 25 years. Cultivation of a narcotic plant, in this particular situation, it is agreed - one year.
3 You also have pleaded guilty to some uplifted charges, one of possessing a controlled weapon and two relating to driving matters involving an "L" plate. Rather than go through all the detail of that on the two driving matters you are convicted and discharged. On the summary charge of controlled weapon, one month. And on the cultivate charge, three months.
4 As indicated during the course of the plea I think matters of totality do not require that cultivation for personal use be added on to the significant sentence that must be imposed for the armed robberies.
5 You are now 50 years of age. You have pleaded guilty once the matter had resolved and you must get the utilitarian benefit of that. I also accept that within your own capacities you have expressed appropriate remorse for the offending that took place. You now have a partner and a very small child.
6 The biggest difficulty, Mr Austin, as you are well aware is a very long and significant criminal history. You have prior convictions for dishonesty, assaults, drugs, weapons and driving.
7 The main prior conviction and I think it is imperative here that they be actually outlined are that over a long period of time you have had very significant sentences for offending of this nature.
8 All the way back to 1980 when you must have been just a boy you received two years for conspiracy. You then had a whole lot of Magistrates Court matters. On the 25 February of 1991 you received seven years with a minimum term of four and a half years. I yet again point out that I find these criminal histories reports very unreliable.
9 It purports to be for attempted robbery and I have difficulty with that and I suspect it was probably attempted armed robbery, at least, because of the sentence of that nature. In any event it was not appealed and I suspect deeply that that's where in so far as you are concerned having done a sentence of that duration where you have clearly breached the parole the die, I think, had been cast.
10 In 1996 you received a four year suspended sentence for armed robbery, which I would have thought was lawfully impossible but be that as it may, again, without wishing to harp on it I query the accuracy of these records but, in any event, that was breached and in June of 1997 that four years was fully reinstated. You served that sentence, it would appear on this record, that you did not have a minimum term.
11 On the 15 May 2002, you were sentenced to conspiracy to commit armed robbery and received a sentence of four years and six months. Again, it is impossible to work out. I think it is four and a half with a three, that is what it appears to be, and you served that sentence.
12 Since then, up until this offending, you have done reasonably well. You have been before courts and you have received various dispositions. That is the position we find ourselves in. The circumstances of the offending I will refer to relatively briefly.
13 On the 24 November 2012 at 4.30 in the afternoon you went into a Better Choice Service Station in Werribee. You walked around inside for approximately two minutes before approaching the attendant and asking whether they sold paint bands for cars. The attendant replied that they did not and you left. You were seen on CCTV footage.
14 At about 10.22 p.m. in the evening on the same day, the victim Abu Uddin, was working at the store. He was in the back cool room, getting ready to close for the day and go home. He had been in there for about three minutes when he came back into the store and saw you and an unknown co-offender standing in front of the counter.
15 A third and, again, unknown co-offender was behind the counter. You were armed with a kitchen knife. The unknown offenders were armed with a wooden club and a knife. They were wearing balaclavas. You had attempted to conceal your identity with a dark coloured hat and a white cloth over your face, however, the cloth had fallen down and revealed part of your face. Because of a disability to your arm you were able to be recognised by investigators later.
16 All of you started shouting at Uddin and one of you held up a knife and started shaking it, eventually understood from you that you wanted him to open the safe door near the register. He realised it was a robbery and thought he should just do what he was told. He walked to the door. All three of you were yelling at him to open the door. He opened it. You came up to him and told him to lie on the floor but then on seeing the open door to the toilet apparently told him to get in the toilet.
17 One of the other offenders held a knife to Mr Uddin, while you walked behind the counter. The other offender came to the toilet area and said, "Where are the smokes?" He still had the wooden club at that time. The victim told him that the cigarettes were in a cupboard behind the counter.
18 After a short time he was told to open the till. He walked back to the till with both the other two offenders and all three of you got behind the counter with him. He could not open the till and he noticed the key on the floor. You saw the key on the ground and told him to pick it up - "Pick it up and open the till." Each of you took money and cigarettes and the like. Shopping bags were taken and cigarettes were put into those. All three of you then left the counter area into the store and two of you warned the victim, "If you follow us there will be trouble." Knives were shaken at him. You then jogged out of the store. He pressed the alarm and called triple 0. He gave descriptions and ultimately you were apprehended.
19 You denied involvement when interviewed by the police in both this and the other matter and we have already discussed that in the sentencing conversation.
20 On the 5 December 2012, a week or so later, at around about the same time at night a Mr Raker was working at the 7-Eleven in Werribee South. He was undertaking his usual closing routine. He was near the Slurpee machine when he looked up to see three males enter the store. Again, two unknown co-offenders - whether they were the same or not I do not know - only you know that, wearing balaclavas and hoodies. You were wearing a hoodie, a hood-up and a tassled scarf, but your face was not covered. The other two were armed with a machete and a hammer. You had a kitchen knife. The victim, at first, thought it was a prank.
21 The offender with the machete approached and said, "Get us the cash. Get us the cash." And tried to force him towards the counter. At this point in time you came up behind him, grabbed him by the shirt. You then walked him to the counter where the third co-offender was waiting.
22 While this was happening there was a customer in the store you told to leave and "We're not going to hurt you." You then saw the back office door opened. You directed the offender with the machete to take the cash from the till. The victim was forced into the rear till area by the two unknown offenders and you opened the till. You told them to take the cash. "It's all yours." And they did. They also took cigarettes from behind the counter. His backpack was also there which contained his laptop computer.
23 You told your co-offenders, "Let's move." And directed the co-offender to take the backpack as you all left. You pressed the duress button. He had been extremely scared during the incident and was trembling. The police arrived a short time later and received the CCTV footage. Approximately $500 in cash was taken as well as cigarettes. In the other matter it was about $800 and about $800 worth of cigarettes.
24 When you were ultimately arrested and police attended at your house on that day. They found 55 small cannabis plants growing in your back yard and that gives rise to the cultivate and I have already disposed of that matter.
25 I think it is important in this situation to bring home very clearly the effect of this offending on the victims. There is no victim impact statement from Mr Raker but he has described as being so frightened that when police arrived he was still trembling.
26 The first of the victims, Mr Uddin, said he was very badly affected by the crime. "I was worried about my safety at work. I was the only person in my family working and had thoughts that I could have been harmed or at worst, killed, and I worried how my family would cope without me."
27 After this he had conflict with his wife. His home situation became unhappy. He felt so depressed that whenever she asked him to do something he would get angry. That is not how he normally is. His wife was not normal because the relationship was different because of his anger.
28 He said looking back on that time he feels depressed and disappointed. He could not concentrate on work. He sought assistance from the Victim's Health Centre and spoke to them about the crime. This took approximately three months before he was able to get his thoughts and emotions back to normal. He has described how he simply, at the time, his thoughts were of surviving and getting out alive. After a few days back at work he had to take some time off.
29 He described that at some stage his legs were shaking while he was standing at the counter. He had to ask for leave. He took two weeks off in February without pay to spend time with his family and try and rebuild the relationship.
30 There would be no reason to suggest that similar consequences have not occurred for the other victim. I go into that in some detail as I will discuss and point out in a moment.
31 You had the courage, at least, to participate in Koori Court and matters such as victim empathy were discussed. You indicated at that time, that it was the first time that you heard a victim impact statement read out. Whether that be true or not it is just so important as the elders tried to bring home to you that you cannot justify this sort of offending no matter what your own personal circumstances are. You simply cannot do this to people. It leaves them shaken. It leaves them psychologically disturbed and it causes great difficulties with their own families. For somebody who when talking to the elders expressed how much you regretted and resented not having a family of your own to cause such stress to someone else's is a serious thing.
32 Indeed, whether you fully understand the consequence or whether you are simply ennured to it because of your existence over the last 40 years I do not know. But you are going to have to come to terms with it.
33 The offending can only be described as serious. It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment. I think in this particular situation whilst it is something that is covered by the other aspects there has to be consideration given to community protection.
34 A submission was put on your behalf that a community corrections order would be suffice. In my view that is totally out of range and a significant custodial sentence is the only one that it is operative.
35 I am aware of the matters outlined in cases such as Tomguenen, where a court should endeavour to give effect a rehabilitation wherever possible and in that scenario because of what I will be describing later I have given you a sentence that might be lesser than would have otherwise have been the case. A significant custodial sentence there must be.
36 I will simply say this also, before I go any further, to you directly, Mr Austin. I don't know how you have gone in the past with legal representation but the fellow that you represented you here the other day showed a lot of passion and has obviously taken a lot of interest and care in you and your missus and your child and I think you should bear that in mind as to the efforts that that man put in on your behalf.
37 Tendered on your behalf were a number of reports. One from Maria Sicuva from Anglicare and one from Thomas Jose who has been dealing with you on credit bail. After you were arrested you did 65 days, as I understand it, and were then released on to credit bail. Their reports say that you have endeavoured to do your best with that and I accept that. Uncle Keith Randall has been present at the hearing and gave - not evidence - but spoke on your behalf during the sentencing conversation and he is a man that I very much respect.
38 He said in the time that he has known you and you have been attending the gathering place that you have been endeavouring to talk to people and endeavouring to deal with the issues that you face and I take very much into account what he said.
39 A neuro-psychologist, Helen Clausen, provided a report as well as psychologist, Pamela Matthews, family counsellor, Allison Cameron and a Dr Yupa. His report related to your wife's condition during the pregnancy of the recent birth of the child and I take those matters into account.
40 Firstly, the reports indicate that there are symptoms of an acquired brain injury but it was not put to me that it was sufficient to give rise to the principles contained in Verdins. It clearly has an effect on you in the way that you speak and the way that you deal with things but there is no suggestion other than that you are an intelligent man and you know what you are doing.
41 Your history is contained in the report of Pamela Matthews. Your history was described by you in very clear terms when talking to the elders during Koori Court and is referred to in other reports.
42 Firstly, in so far as your participation in Koori Court is concerned, you have done it. You faced your elders in circumstances where you must have known that the very real probability was that you were going to be incarcerated.
43 You were endeavouring, I have no doubt, to be confronted by them, to interact with them and to explain how you felt. You have been to Koori Court before and I dare say you have had dozens - probably - of meetings with the Parole Board. I take into account that you are probably relatively experienced in trying to justify yourself, if that is not an unfair description. I thought that you were genuine in your attempts when talking to Uncle Lloyd and Aunty Joan and that is to your credit.
44 I think that in a situation such as this where somebody of your age is prepared to subject to yourself to that process then in circumstances where one might think objectively there is little or no prospect of rehabilitation that it gives one some encouragement that such prospects are not extinguished. You had very clearly pointed out to you by each of those that despite the horrendous nature of your upbringing and background it is you who does the armed robberies and it is only you who can stop doing them.
45 Your history is so typical of what we deal with in Koori Court and what has been dealt with many, many times in mainstream. It is a history which, I think, is very, very often misunderstood.
46 You are from the Gunjamurra mob. You were born to a very young mother who was unable to look after you. Your father was not Aboriginal and at the time of your birth was in gaol. Your mother was 16.
47 You were taken and raised by your maternal grandmother who you have always called, "Mum" and seven uncles and aunts and as you know some of those uncles and aunts are known personally to me and are very good people.
48 I accept that there was exposure to domestic violence, marijuana abuse and alcohol abuse in your developmental years between members of your family. You did not meet your father until you were 30 years of age.
49 At the age of four you and your younger brother were diagnosed with tuberculosis and each of you spent 18 months in the Austin Hospital. After that you lived in the Preston area and at the age of 11 you were placed in the Baltara Reception Centre becoming a ward of the State.
50 I just reflect that bearing in mind your age and when this started that a tally some years ago showed that 60 percent of criminal records in this State the first conviction was a care and protection application in going to Baltara. In any event, at that point, you met a younger brother you did not even know about.
51 You went from Baltara to Tally-ho with weekend leave at home and aunty picked you up and took you back each weekend.
52 On one Sunday night you have described and your counsel very eloquently described on your behalf again how you came to meet your mother. You were being driven back to Tally-ho and there was a swimming contest or something along the line and that was when you were 12 or 13 years of age. That was when you were introduced to your mother.
53 Ultimately, you looked after her for an extended period of time, while she died in tragic circumstances of cancer. As was pointed out at the conversation table with the elders you looked after her for a lot longer than she looked after you.
54 In 1987 you found that you had another sister. That came as a big shock to you. Despite your mother, at that stage, having some contact with you she had never mentioned any other child.
55 After you had been through Tally-ho, you went home again to your grandmother, but afterwards were in and out of institutions. You spent time in Turana YTC, Langi Kal Kal, Malmsbury, and then at the age of 17 years graduated to Pentridge. You were placed in Jika and I was going to ask you at the table but thought that may not have been appropriate as to why that was but you went in there in Jika Jika, which is again well known to me, when you were 18. It was in that part of the gaol that you saw your first murder. You learned, as you said, to the psychologist about paranoia that day.
56 In 1996, your grandmother died. You were in and out of prison up until 2008, and in that time you tried to take intensive intervention into the drug and alcohol abuse which you had suffered from. You had been drinking and using heroin since your teens. In the circumstances it is hardly surprising.
57 At that point you met with your mother's partner, who is now deceased, and I know little about that.
58 You obtained your own home in Thomastown in 2005 but ultimately received a telephone call from that step-father, as he is fairly described, to say that your mother had a brain tumour. You nursed her through her chemotherapy. Sometimes you lived with her in Northcote and sometimes she came and stayed with you in Thomastown. She died in 2010 and from your perspective, as you said to the psychologist, "Everything went to shit for a while."
59 Your mother had been assisting you to care for your 11 year old daughter, who is not the child of your present partner. When your mother died the department took the child away. You now only see that daughter occasionally.
60 Your current relationship began over 20 years ago. There are older children involved who have had no contact with police and have done well. Each of them has done well at school, and as I understand it from what you were telling us the other day two of them have completed their HSC. That is highly laudable.
61 As a school boy you did not like it basically. You report yourself as having been uncontrollable which I suspect you might have picked up when you were sent to Baltara as being charged with being an uncontrollable child but that is just a guess. You fought a lot. At one stage in your life you were badly injured in a motor vehicle collision and have effectively lost use of one of your arms.
62 You have only ever worked for one week when you were 14 years of age. You, when examined by the psychologist, fell into the range of severe for stress and depression and extremely severe for anxiety. In the normal course of events that would cause me to say that being in prison would be harder on you than for other prisoners, however, the real problem we have here and you are well aware of this yourself is that up until recent times you had only ever spent - the longest time you had ever spent out of care or youth detention or gaol was nine months. I have got no doubt that you have extreme institutionalisation problem and gaol probably takes quite a lot of the stresses and decisions out of your existence.
63 There is not much a sentencing Judge can do in those circumstances. You go back a long way in this system and you have reached the age now, where from Koori Court, as you know, and we talked about the other day with Uncle Lloydie, most black fellows are dead by now. May be gaol has kept you alive. I do not know. But you are running the real risk that if you do not get it together upon your ultimate release you are going to either die in gaol or you are going to die and you are going to leave a very small child fatherless. That is a matter for you and as the elders pointed out to you there is not much they can do about it. It really is up to you.
64 Also the report of Ms Matthews said that locking you up had the potential to increase your mental health systems and to separate you from the family in this situation is potentially going to do more harm than good. I know that but there is nothing I can do about it.
65 In a perfect world you would be on a community corrections order but not where you have done something in the order of, on my calculation, 15 years for armed robberies in the past or certainly robberies and armed robberies in the past. The court's hands are very much tied.
66 The report from Maria Sicuva at Anglicare basically repeats what Ms Matthews had to say and repeats what I said earlier that since you have been on bail for the last four months you have been making great endeavours. The report from the CISP people goes on to describe how you have been referred to the gathering place and that you have been trying to avail yourself of what can be gained from that.
67 There is a neuropsychological report. It simply reiterates what I have said about your history. You started using heroin at 17 years in gaol and 14 years for cannabis. You told the neuropsychologist that you were institutionalised and I have got no doubt that that is true.
68 In the end as it comes down to you there would be a fairly wide range of sentences that could be imposed in a situation like this. There have been circumstances where I have seen people get upwards of eight years for this sort of thing.
69 You have pleaded guilty. You have come before Koori Court. I accept from that process, not that you get a discount just for coming to Koori Court but because of that process and because of your openness with the elders I think I know a bit more about you.
70 I think in this particular situation that whilst I certainly could not accede to the submissions that were put by your counsel I will give a custodial sentence that is lesser than might otherwise have been the case. There will still remain a sentence which displays the community's abhorrence of armed robberies on vulnerable people in such a situation and the effects that it has on them. Rehabilitation is up to you. Re-offending, again, entirely up to you. There is nothing much I can do about it. I just simply say to you as you are well aware in any event that do this again and you will die in gaol. The sentence that would be imposed would have to be so long.
71 As again was indicated during the sentencing conversation the process of Koori Court can be so powerful that one tends to forget the victim that it is all about and it is meant to be. It is all about the accused person and their potential of rehabilitation. They are connecting with their mob and they are becoming a member of the community. But as I again indicated during the course or after at least the sentencing conversation it has got to be balanced against the seriousness of what took place.
72 Another matter which is really concerning is that on your criminal history and what you told me you have breached every parole you have got. A Judge has to sentence on the basis that the entire sentence will be served yet knowing - deep down that is rarely the case. I think there is a very real risk that you will not get parole but, again, there is not much I can do about that. And this is a sentence which has been reduced to a degree because of that very, very real possibility. It is a matter for the Parole Board and I simply say this that on the material before me and, particularly, what I was told by Uncle Keith, certainly at this point in time I think that your determination to endeavour to rehabilitation yourself is very good. Whether it can last the distance I do not know but my desire would be and it can be no more than that, that you do get parole. I have given a slightly lesser minimum term than normal to endeavour to facilitate that but I think that you are either going to rehabilitate or you are going to die and, again, I can only do what I am allowed to do.
73 Accordingly, on the charges of armed robbery, on each charge you are sentenced to imprisonment for a period of four years. I direct that one year of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. That gives a head sentence of five years.
74 In all the circumstances of this matter, and it may even involve a degree of mercy for somebody who has been subject to such a dreadful background I direct that you serve a minimum term of three years before becoming eligible for parole. I direct that 65 days be reckoned as having been served under this sentence.
75 Just so appreciate and you would anyway from your life experience that the benefit of the plea of guilty - I say that but for your plea of guilty you would have been sentenced to imprisonment for a period of seven years with a minimum term of five.
76 Now, there is no other orders I need to make?
77 MS PICONE: Nothing further, Your Honour.
78 HIS HONOUR: Yes. All right.
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