Director of Public Prosecutions v Azzopardi

[2019] VCC 1406

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 18-02556

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT AZZOPARDI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v Azzopardi
MEDIUM NEUTRAL CITATION:	[2019] VCC 1406

REASONS FOR SENTENCE

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Dunn
For the Accused	Ms A. Hurst

HIS HONOUR:

1Robert Azzopardi, on 2 April 2018, you were staying at a house in Sebastopol and had been for only a few weeks.  Those in that house were supplying you with methamphetamine in return for you doing what they ask around the house and driving them places.

2Those living at the house were Darren Williams, then aged 35 and
Jordan Anderson, then aged 30 and Kristy Stevenson, then aged 33.  You were then aged 21 and obviously much younger than those others.

3Early on 2 April 2018, the victim was outside a friend's house not far from the address where you and the others were living in Sebastopol.  Darren Williams came across the victim.  The victim was preparing to ride his motorbike back to his home in a nearby, or near enough, country town.  Mr Williams knew the man who the victim was speaking with and he invited this man and the victim to the house where you were staying.  You did not know the victim at all.

4The victim rode his motorbike and put it into the rear yard.  As well as those mentioned already there was also a young female at the house who was incorrectly introduced as your younger sister.  After introductions you, the victim and Williams walked to some nearby shops.  On returning the victim spoke with the young female saying that when she gets older she would be 'fighting guys off with a stick'.  This seemed to irritate you and the others or it was used as a reason for later criminal conduct.

5Williams told the victim to come outside the shed to see something.  You and Anderson went with those other men.  Once there you immediately and angrily asked the victim about his comment to the young woman, calling her your young sister.  Williams then produced a sawn-off shotgun, seriously escalating the danger and criminality.  You then said to the victim that he was to sign over the ownership of the motorbike as punishment.

6A contrived receipt was written up and the victim forced to sign it.  He in fact deliberately misspelled his name so as to cause problems with any transfer or registration to the purported new owners.

7The victim was taken back inside the house.  He was then told to smoke some cannabis.  You took his backpack and searched it.  You found his licence and realised the name the victim had put on the receipt was not exactly accurate.  You became enraged and told the victim there would be consequences for this attempted deceit.  The victim said he just wanted to go home and he would not tell how, if he got home, he did not have his motorbike.

8You and Williams were concerned that the victim would tell the police.  You men told the victim he would be driven home.  You got the victim into a car, making him put his jacket over his head.  You drove for about 10 minutes or so before pulling up.  You then got out of the driver's seat and into the backseat next to the victim.  He got the sawn-off shotgun or rifle, putting it in the victim's mouth.  You then said the following chilling words and I quote in paragraph 21 of the prosecution opening.  You said,

'If you ever fucking tell one person what the fuck has happened, I'll have you and your fucking mother murdered.  I know where you live and I'll have cunts come around before you can even call anyone.  Do you fucking believe me?'

9The victim said that this was the scariest moment of his life and he thought he was going to die.

10The victim then was put out of the car with his jacket over his head, you drove off with the other co-accused.  The victim had no idea where he was and walked, eventually finding a service station where the police were called and help obtained.

11You pleaded guilty to armed robbery, kidnapping, extortion with a threat to kill, being the words that you spoke to the victim while holding a gun in his mouth that I have just quoted.  You have also pleaded guilty to being a prohibited person in possession of a firearm.

12This later offence reveals that you have prior criminal convictions, but while relevant they are not numerous.  On 4 May 2017, you were before the Magistrates' court for an affray and received a fine with conviction.

13Shortly after, on 22 May 2017, you were before the Magistrates' Court for a series of violent offences involving a previous partner.  Those offences included a threat to kill and recklessly causing injury.  You were sentenced to four months youth justice detention.

14Counsel explained that this offending occurred when you discovered that your partner, that you had been with for over five years and who you shared - you had a child with that partner.  You discovered that she had had an affair with your older brother.  Your emotional and psychological state were in disarray.  A psychologist report from a Ms Jammit, which was provided for the purposes of the Magistrates' Court hearing set out your state at around that time, and I have taken that into account.

15This prior matter of a threat to kill is thought to have implications involving the serious offender provisions of the Sentencing Act, but upon further investigation it has been determined that it does not enliven those provisions and there is no need to refer to them.  Nonetheless, you do have a prior conviction for threat to kill.

16Your prior history is relevant, but given your young age then and now I do not over emphasise these two previous court appearances, even though one involved detention in a youth justice centre.

17The ordeal suffered by the victim has left a significant mark on him.  In his victim impact statement he said that he feels emotionally disconnected from society as a result of this terrible crime.  He feels unsafe everywhere he goes, even at home.  He suffers depression, anxiety and what he knows as night terrors.  He is now on multiple medications with side effects and the crime exacerbated his mental health issues.

18He points out that his brand new motorbike was worth a lot of money and he had made a huge effort to get that money for that bike.  Losing the bike was a very significant matter to him.  His phone was lost with private data, which causes him concern.  He also points out that the helmet that was taken from him was a very special limited edition helmet that cost a significant amount of money.  He says,

'I loved my bike and helmet so much, it's all I had'.

19These days he says that all he can do when he goes out is go to counselling or perhaps to the supermarket, but all of that is done with great fear as he looks over his shoulder and is hypervigilant, things of that kind.  He is unable to work or study due to paranoia and anxiety, which is overwhelming.  He concludes with these grim words,

'Basically, I feel worthless, waste of space and a paranoid depressive who doesn't trust the world'.

20But he wishes to thank the police for the work that they did in solving this matter.

21As to the gravity of these crimes it is self-evident that these are serious examples of serious crimes.  With multiple accused involved effectively surrounding the accused in the shed and in the car adds to the gravity.  The use of the frightening, dangerous weapon to get the motorbike and force the victim to sign a receipt to cover your tracks is very concerning criminal conduct.

22Your discovery of his efforts to derail any re-registration significantly escalated the circumstances as you said that there would be consequences and then followed that up with the frightening words that he had to come with you, that is all the accused in the car, where there was a gun and he had his head covered.  All this renders the kidnapping a grave crime.  This form of kidnapping must be condemned.

23Your threat to murder him and his mother or have them murdered while holding a gun in his mouth only has to be said for the seriousness to be fully expressed.  It is at the upper end of the range of offences involving words of threat.

24You as a prohibited person possessed the weapon that enabled the criminal behaviour in this case.  I note that the gun was got by someone else and I do not find that it was yours.  But you eventually got it and used it in the way that I described.

25I take into account what was said in the matter of Bearishon paragraph 26 of 27 as to the criminal conduct.  In short form, what Redlich J said in Bearishon was the second category of cases are those where the evidence enables the conclusion that the possession is for the purposes of criminal activity or a specific criminal purpose and more severe sentences are then usually in order.

26The question of your moral culpability is a bit more problematic.  You were young and consequently more immature, in the sense that you were not able to think through the consequences of these serious crimes.  You were much younger than your co-accused.  You say you were frightened of not joining in with what they were doing.  Your addiction to drugs was being satisfied by them and you were loath to jeopardise that.  You were drug affected during the offending.  There is enough to see that you simply did not properly consider just how serious this mindless offending was and how the consequences would seriously impact upon you by the inevitability of the imposition of a term of imprisonment, depriving you of some of the best years of your life.

27You are now 22.  You were raised in Ballarat with an older and younger brother.  Your father was violent to your mother and to yourself and abused alcohol.  Those his violence continued whether he was affected by alcohol or not.  As you grew up your experience was that your brothers ultimately sided with your father.  When you left home you persuaded your mother to join you, this caused real anger in your father and brothers who physically assaulted you as retribution.  Your mother remains very supportive, visiting you on remand and promising to provide accommodation, if needed, on your release.  You have no contact with your father or brothers.

28You attended school to Year 9, struggling with reading and writing.  You commenced an apprenticeship as a plumber, remaining in that trade for a number of years.  What sadly brought an end to your prospects as a qualified plumber was your addiction to methylamphetamines.  Your counsel submitted your troubled upbringing was relevant to my sentencing task.  No doubt it is.  As the High Court has said, dysfunctional upbringing most often has enduring impact upon development of an accused person.  Including establishing a proper moral compass and a capacity to be free of antisocial behaviours, such as drug and alcohol abuse and criminality with other like young people.

29As mentioned, you had a relationship when you were at the age of about 16 or 17.  Your partners upbringing was troubled.  She was emotionally unstable.  You became a father far too young.  The breakup of this relationship saw you homeless.  You took to methylamphetamines in the context of not seeing your child and the difficult end of your relationship.

30In response thereafter, with methylamphetamines now a problem, you committed the offending that I have discussed which saw you sent to the Youth Justice Centre for four months.  Upon release, you were without any accommodation or stability and fell back into heavy drug use, which saw you experience periods of drug induced psychosis, involving auditory and visual hallucinations.

31Following the offending you remained in Ballarat still using drugs.  You were attacked by drug associates and stabbed, causing your lung to collapse.  You make a statement to police, but have recently been stood over in the prison regarding this.

32After the stabbing you decided to go to Adelaide to attempt to get off drugs and out of the chaotic lifestyle you had taken on in Ballarat.  You were in Adelaide able to abstain and while there, and clean of drugs, you met a young woman and have established a strong relationship.  She has no connection with drugs or crime, quite the contrary.  She remains helpful to you, after you explained your drug difficulties.  You met other friends of hers, one of those friends and your partner attended court on the plea, driving all the way from Adelaide so as to support you.

33One of your friends, if I get the name mispronounced I apologise, Mr Michael Nahalus, gave impressive evidence of how you were drug free and once drug free honest and decent in his eyes once you were established in Adelaide.  In his view, your relationship with your new partner is solid and positive.  He sees very strong prospects for you.  I take into account his insightful evidence.

34Your plan on release is to return to Adelaide, remain drug free and away from crime.  You want to work and put this recent chaotic years behind you.  You were arrested in Adelaide and extradited to Victoria where you have remained on remand.  You have done what you could in prison to improve yourself.  You are on protection due to the matters relating to the stabbing.  I will factor this into the sentencing equation in your favour.  Your plea of guilty is important.  It was an early plea, revealing your acceptance of your responsibility.  It relieved the victim of further reliving this trauma.

35This attitude contrasts to your co-accused, who are contesting the allegations as is their right.  Your plea of guilty and the other evidence in the psychiatric reports, your new friends in Adelaide, make it clear to me that you are genuinely remorseful.  Once the fog of drugs lifted you appreciated how dreadful this ordeal was for the victim.

36Your plea of guilty means that I will pass a lesser sentence than would otherwise be the case.  A plea of guilty and remorse, and your changed ways once back in Adelaide, give me confidence that you will reform.  Sadly, due to the seriousness of your offending, you must serve a gaol sentence before you can continue your changed ways back in the community, most likely in Adelaide.  The gaol term will be hard because of the distance separating you from your new partner and friends.  You have your mother here, but no one else.

37I take into account the opinion of Dr Cunningham, the psychiatrist who saw you, that you still have symptoms of trauma from your childhood and now also the more recent stabbing.  Those symptoms are not likely to abate in prison, as they were commencing to do when you were in Adelaide.  In other words, prison will be onerous for you and most likely make things - your mental health problems - a little more serious.

38Your counsel sensibly conceded that a term of imprisonment was the only option.  Indeed, the new categorisation of offences makes the offence of armed robbery, which involves an armed robbery in company and the kidnapping, new categorisations to make it mandatory to impose a gaol sentence unless the exempting criteria are established and they are simply not present in this case.

39Your counsel urged a longer period of potential parole, so as to provide assistance to you on release and hope.  She urged that a longer period of parole be achieved by a lower minimum terms.  There has been a significant number of cases establishing principles for setting non-parole periods, including cases about what language to use.

40But whatever the language, this concept of setting a minimum term that allows for the potential of commencing rehabilitation in the community for a young offender is a concept well understood.  An often cited authority for this was the words of the eminent Supreme Court judge, much experienced in the criminal law, Starke J, who said in 1978, I think, or it might have been 1982.  I apologise for the lack of precision about the reference.  But in the case, well known case of Houston v Turnbull he said, after discussing the maximum term for sentence, which are serious and prevalent and the like; in that case he said,

'However, when one turns to rehabilitation of the prisoner himself, which always of course a matter of concern for the court, it seems to me that one can give relief to a prisoner who appears genuinely to be endeavouring to rehabilitate himself by fixing a shorter period as the minimum term than one might otherwise have been imposed'.

41In R v JTAV the Court of Appeal dismissed a Director's appeal where the unique circumstances of the case led to a non-parole period of just 20 per cent of the head sentence.  Justice Charles, with the agreement of Chernov J, who gave separate judgment, said the following,

'It is of course well established that particularly good prospects of rehabilitation may result in a shorter than usual non-parole period'.

42He then referred to other cases of Bolton and Barker [1998] 1 VR 692, per Callaway JA at 696-7. He referred to Houston and Stanhope and also Bugmy (1990) 169 CLR 525 at 531-2 in the judgment of Mason CJ and McHugh J. This High Court case of Bugmy, of course, is the seminal authority in sentencing.  Especially with respect to fixing non-parole periods.

43This approach has been adopted by very experience and eminent Supreme Court judges in sentencing at first instance, such as Redlich J in Lam & Ors [2005] VSC 495, paragraph 187. Chief Justice Warren, in R v Nguyen [2003] VSC 62, paragraph 30, was dealing with a 20 year old then who was found guilty of manslaughter after a trial which saw a not guilty verdict to murder. The offending occurred when that accused was 17. Her Honour said, after dealing with matters such as the need for deterrence and denunciation, continued,

'Yet your youth and prior history should be allocated significant weight as mitigatory factors in your sentence.  It was submitted on your behalf and not resisted by the Crown that it is highly desirable that your prospects of rehabilitation be supported by the Adult Parole Board for a longer period than might ordinarily apply.  This is because of your youth and the apparent lack of a mature influence on your life since about 15.  To put matters plainly, your case is one that calls for a longer period of parole than might usually be the case to provide you with the opportunity to achieve rehabilitation and move on from your difficult past. It is highly desirable that you pursue educational and employment skilling opportunities'.

44There are other cases.  More recently the Court of Appeal has revisited the issue in the Crown appeal of the DPP v Huby.  The Director's appeal in that case failed where a sentence of five years, with a minimum of one year was imposed for culpable driving.  The Court of Appeal refused the Director's appeal, indicating the unique circumstances of that case and the unusual sentence and the proportionate difference between the head sentence and the non-parole period was within range.

45I am of the view that your case is not of the particular unique kind that I have set out in those authorities, such Huby and JTAV.  The proportion between a head sentence and a non-parole period need not be in your case so stark.  However, I discuss those cases so as to ensure that there can be no doubt that I have anxiously considered the proper and just fixing of not just the head sentence of the minimum term.  I do find in all the evidence of your progress and reform in Adelaide, especially in giving up the drugs, I find that your prospects for rehabilitation are very good.

46There is a powerful need, however, to give weight to deterrence.  Such dreadful and violent stand over crimes involving weapons and kidnapping must be met with stern sentences, unless truly unusual circumstances exist.  So too must weight be given to denunciation for this appalling criminality.

47However, the need to give weight to rehabilitation remains important given your youth, your relatively limited prior offending and your positive and changed attitudes from the time you got to Adelaide and subsequently why you have been in custody on remand.

48As is well established, the minimum term is what justice requires as the minimum time you must be incarcerated.  The minimum term operates to assist you, but it is also very much in the community's interests as it is one of the ways, perhaps the only way, that I can establish conditions to facilitate your reform.  This is indeed the language of the Sentencing Act.  The community is best served if you do permanently reform.  The potential for lengthy condition or release upon parole can best achieve what is in the community's interest.  As often said there is no fixed formula and I sentence you on the basis you may have to serve every day of the head sentence that I impose.  This is because whether and when you are granted parole is for others, not me.

49There has to be some cumulation for this offence, although it was one criminal enterprise.  But at the end I have stood back and had a final look so as to ensure your sentence fits the crime, that is the entirety of the crime, no more and no less.

50Doing the best I can in respect to these very grave crimes committed by you as a young man, in all the circumstances that I have just outlined, I impose the following sentences.

51For the crime of armed robbery you are sentence to a term of imprisonment of three years.  For the crime of kidnapping you are sentenced to a term of imprisonment of five years and six months.  For the crime of extortion with a threat to kill, you are sentenced to two and a half years.  That is two years, six months.  And being a prohibited person in possession of a firearm you are sentenced to a term of imprisonment of one year.

52I order that one year of the armed robbery, that is Charge 1; nine months of the extortion with a threat to kill and three months of being a prohibited person in possession of a weapon be cumulative upon each other and upon the base sentence for kidnapping, which is five years and six months.  If my mathematics is correct that is a term of imprisonment of seven years and six months.  I impose a minimum term of three years and nine months before you are eligible for parole.

53Can someone tell me what the PSD is to this point?

54MS DUNN:  Three hundred and eleven days.

55HIS HONOUR:  Three-one-one?

56MS DUNN:  Yes.

57HIS HONOUR:  I have been told that you have been in custody for 311 days.  That figure having been reckoned I now declare that you have served 311 days of the sentence I have just imposed.  I will ensure this declaration is entered into the records of the court so there can be no doubt that you have already served 311 days of the sentence I have just imposed.

58In respect of the requirement under the Act I am to indicate what sentence I would have imposed had you pleaded not guilty to these offences.  It is particularly difficult given that your plea of guilty and your reform has resulted in the minimum term that I have just announced.  This would not have been the case had you pleaded not guilty to these offences and been found guilty of them.  I would have imposed a sentence of 10 years with a minimum of seven.

59Now it should be made clear that is the sentence that would be imposed on trial if I were the sentencing judge after a trial for you as 21 year old in all your circumstances.  It is not a sentence that (indistinct words) any other sentence that might be imposed for anyone else that might ultimately been found guilty or plead guilty to these offences.

60Is there any other requirements?

61MS DUNN:  The 464, Your Honour.

62HIS HONOUR:  The application that you provide a forensic sample has been made by the Crown, I intend to grant that application.  I do so because of the seriousness of the circumstances and because of your prior convictions and because the granting of the order is for the public interest.  What you have to understand, Mr Azzopardi, is that the prison authorities or some authority, authorised member of the police force, will come to take a sample.  It will be scraping from your mouth, you have got to cooperate.  If you do not than authority may use reasonable force to enable to forensic procedure to be conducted.

63So all the mathematics are correct, Ms Hurst?

64MS HURST:  I think so, Your Honour.

65HIS HONOUR:  Well, Ms - was it?

66MS DUNN:  Yes, Your Honour.

67HIS HONOUR:  Yes, thank you.  Is there anything further?

68MS HURST:  No, Your Honour, thank you.

69HIS HONOUR:  I am grateful for counsels significant assistance in this case.  Mr Azzopardi, you need to be taken down and commence the sentence that I have just imposed.

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