Director of Public Prosecutions v Bamford

[2016] VCC 161

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01909
CR-15-02126

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT BAMFORD

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2016
DATE OF SENTENCE:	23 February 2016
CASE MAY BE CITED AS:	DPP v Bamford
MEDIUM NEUTRAL CITATION:	[2016] VCC 161

REASONS FOR SENTENCE
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Subject:                   CRIMINAL LAW
Catchwords:           Sentence – armed robbery – robbery – fail to answer bail - delay
Legislation Cited:    Crimes Act 1958 (Vic), Bail Act 1977 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:          Bugmy v R [2013] HCA 37, Boulton v R [2014] VSCA 342

Sentence:Convicted and sentenced to 3 years and 8 months imprisonment with a non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper (Plea) Mr N. Baarlink (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Ms Z. Broughton (Plea) Mr A. Pyne (Sentence)	Victoria Legal Aid

HIS HONOUR: 

1Mr Bamford comes before this Court having pleaded guilty to two charges on Indictment No.C1610539.  Those offences took place on 3 June 2010 when Mr Bamford, on my calculations, was 27.  He was born on 25 August 1982.  He is now 33.  He is a metalworker/scaffolder by occupation.

2In the hearing, which took place on 12 February 2016, Ms Harper appeared for the Director and Mr Baarlink appears today, and for Mr Bamford,
Ms Broughton appeared at the hearing, and Mr Pyne appears today.

3The two charges in the Indictment are both of some seriousness. First is a charge of robbery committed on that day that is 3 June 2010 at 5.30 am in the morning upon the first victim. The seriousness of such an offence being a breach of s.75 of the Crimes Act 1958, is demonstrated in the fact that Parliament has prescribed as a maximum penalty a maximum period of imprisonment of 15 years.

4It is, as I think I said during the plea, when one takes that into account it is hard to marry the circumstances whereby the net gain of the robbery was cash of $120, if one balances against the risk to a person's liberty.  However, unfortunately, we regularly get these types of crimes here, committed by drug addled persons which, unfortunately, Mr Bamford was at this stage.

5The second charge is a more serious charge, and that is armed robbery, again committed in the early hours of the morning, again committed upon the second victim. The armed robbery being an offence against s.75A of the Crimes Act 1958, is a serious offence as is demonstrated by the fact that Parliament prescribes a maximum penalty of 25 years for an armed robbery, being the highest penalty that one can get apart from a sentence of life imprisonment under the Crimes Act 1958.  Again, the princely sum in return for this grave risk to one's liberty was $400.

6The learned prosecutor tendered as Exhibit A, the opening, which was accepted by defence counsel as illustrating the appropriate facts upon which I am to sentence Mr Bamford.  It certainly was not incomprehensible, given his state that later that day, that is on 8 June 2010, Mr Bamford was apprehended, he still had the mobile phone and the scissors.  As he said ultimately in his record of interview, that it was just a “spur of the moment thing.”

7The summary itself simply demonstrates what I have really already said; the robberies were committed fairly quickly, the amounts involved were relatively small, dramatically small, as I have said, given the risks, the first victim was on his way to the airport, the second victim was on his way home from work.  In regard to the armed robbery, the second victim was approached by Mr Bamford with another person, Viktor Sundstrom, standing by.  The pair of scissors was produced.  He was asked, "Where's your wallet?  Is there any money in your wallet?", while menacing the victim with the scissors.  The prisoner frisked the victim and removed the phone.  As I say, valued at the princely sum of $400.

8The prisoner was arrested then and taken to Box Hill Police Station. He was in fact released that day, and subsequently arrested again determined that he was involved in the other crime and apparently arrested on 11 June 2010. The prisoner was subsequently bailed to appear on 21 June 2010 and, of course, never appeared. Hence the two summary offences, which I am asked to take into account, a failure to answer bail, such being an offence against s.30 of the Bail Act 1977, for which the maximum period of imprisonment by way of penalty is one of 12 months.

9Remarkably, and I do not know the full details of this, but he went back to live at his normal abode, that is in Perth.  Apparently, I am not too sure precisely how long, but for a considerable time, and I am talking years, the police apparently were aware of where Mr Bamford was living, that he was in breach of bail, and despite these very serious charges, there was no steps taken to bring him back to Victoria.

10The proposition put to me by the learned prosecutor at the plea was there was no money in the police budget in order to extradite him, and apparently the costs of extradition are such that it is difficult to arrange.  Finally he was apprehended some considerable period after these offences, approximately the 7^th of September 2015 and the orders were not made to send him back to Victoria, as I understand, until the following December.

11I consider this is quite a reprehensible situation.  As a result of the failure by the police to act in an appropriate and timely manner, Mr Bamford gets the benefit of the delay, which has to be taken into account irrespective of the cause.  It cannot be sheeted home to the police officer involved in this matter, themselves because they no doubt were seeking to extradite Mr Bamford. However blame can be sheeted home to the police department and it seems to me this is a gross failure of their operative obligations.  This matter should be pursued, Mr Prosecutor, and either the Minister and/or the Chief Commissioner, should be advised and some explanation should be given, if not to the Court, at least to the Director.

12I cannot quite comprehend how a person who has committed such serious offences can knowingly be left in the community by the police and not apprehended, albeit it was known when they know where he lived for so long.  It seems to me an outrageous situation.

13Anyway, that is of benefit to Mr Bamford because he is entitled to an appropriate discount for the circumstances that occurred since that time, and I will come to those in due course.  I do not know whether it is due to the delay but there are no victim impact statements filed in this matter.  There is a s.464ZF order sought, and I intend to grant that given the circumstances of this matter and Mr Bamford's history, and I think I signed a disposal order - is that right?

14MR PYNE:  Yes, Your Honour.

15HIS HONOUR:  Yes, it was that in regard to the scissors.

16MR PYNE:  I do not have a copy of the order.

17HIS HONOUR:  I think it was just the scissors, yes, but any rate, I have signed that.

18In hearing the plea on behalf of Mr Bamford, Ms Broughton tendered five documents.  The first exhibit was the outline of her own submission in regard to penalty dated 11 February of this year.  The second exhibit was the psychological report of Elena Gianvanni dated 10 February 2016.  Exhibit 3 were a number of certificates that Mr Bamford obtained while in custody.  Exhibit 4 was a letter from Mr Bamford to the Court, expressing his remorse and intent as to the future, and Exhibit 5 was one urine screen.

19As a matter of significance are the prior offences of Mr Bamford.  I always make it clear to persons, you do not come up to be sentenced again for your prior offences.  However, they are offences of some magnitude, although in Mr Bamford's case they are not numerous.  However, they are of some dimension in themselves.  In particular, they are matters for which he got a 32 month aggregate sentence in December 2006.  All of these prior matters occurred in Perth.  It would appear that from the age of 24 he first got gaol for some car offences.  However, the matters that I am talking about are the aggravated robbery, as it is so called, in Perth, two assaults and burglary.  They are all combined and he was sentenced to a period of imprisonment of 32 months.  Obviously, the aggravated robbery is very much a relevant prior, in regard to the offences that he is facing here.

20The prisoner was subsequently paroled, some time, in 2008. However, he breached his parole and was taken back to gaol to serve the full sentence.  As I understand it, he was released from that sentence in January 2010.  He thereafter made his way to Melbourne, and again it is not insignificant, that despite being in gaol for a considerable period for serious offences, by June of that year, while in Melbourne, he commits these further very serious offences, and thereafter flees the State.

21Insofar as considering the issue of delay and what the prisoner has done with himself since, which is important, it still should be pointed out that, albeit that he has not been given any gaol, he has continued to offend, particularly insofar as driving offences are concerned, which are consistent with his history, but he has also had, as of January 2015, a breach of a violence restraining order, and further, a weapons conviction in December 2004.  As I say, those matters are concerning, given the history.

22Insofar as the plea put in this matter, I accept the propositions put by counsel that Mr Bamford certainly fits into the category of a person who has had a particularly disadvantaged life.  I also accept the propositions put that the principles set out in Bugmy v R [2013] HCA 37, as set out in paragraph (d) on p.2 of the submissions, are appropriate for consideration, and I give full weight to those. Those principles, of course, do not excuse the criminality here, but they go to giving some explanation of both the background of Mr Bamford, how he became addicted to both alcohol and drugs and how he became so involved whereby he committed these offences, which represented such grave risks to his own liberty.

23Unfortunately, because of his disadvantaged background he ultimately left home at 16.  He had difficulty in obtaining employment but continued in full employment until he started to offend badly, as I have already remarked, at about the age of 27.  When taking into account these matters of disadvantage, while I accept they are the explanation, the serious offending in his life started at 27.  He then gets out, as I have said, and was only out six months, having served the full term of that Perth sentence, when he commits these serious offences.  Those offences were committed while he was clearly under the influence of drugs and alcohol. The impact of a prior disadvantaged history, loses much of its impact when you consider that immediate history.  The fact is that despite a serious gaol sentence, he did not change his ways at that stage and continued to put himself in a position where he committed these crimes.

24I do not, in the circumstances, while it is an explanation for his criminality, accept that his disadvantaged background in any way reduces his culpability for these crimes, of which I am sentencing, nor the need for an appropriate sentence which effects denunciation, and both general deterrence and specific deterrence.  That is not, as I have said, to say that I do not recognise that in his particular case it was no doubt the very social disadvantage that he suffered that led him into the life of crime that began predominantly by way of serious offending when he was aged 26/27.

25The report tendered from the psychologist insofar as his recent life, and essentially the proposition put to me by counsel, concerned the steps that he has taken since he jumped bail, basically, back in Perth.  He was fortunate to meet an early associate, Caitlin, and he was able, by 2013, to get off the addictive side of drugs and alcohol.  He has obtained a job as a scaffolder and continued in that position and, indeed, became a father of three children and lived a life of responsibility and care for them.  As I understand it, he was working as a scaffolder in Kalgoorlie.  However, at the same time I make the point that he continued to commit criminal offences.  Anyway, he was finally apprehended in September 2015.

26Insofar as the report tendered, Exhibit 2, this is a report following an examination in an assessment made at prison on 8 February.  On p.1 of the report it notes the background, the writer's opinion that he is currently, because of the fact that he is off drugs, at a low risk of general re-offending, including violent offending but, of course, contingent on his abstinence from drugs and alcohol.

27The report analyses a number of aspects of his life as, in particular, paragraph 5.9, that the life that he was living at the time of these offences.  Apparently he was on heroin.  He was living with this couple.  They asked him to steal for him.  He had gone through the CISP program post-sentence and was simply struggling.

28As I say, he got back to Perth and paragraph 5.10 talks about his changing his life, as I have referred to.  He met his former fiancée.  They had their first daughter, who is now apparently three, and he wanted to be a good father.  Indeed, the desire was to be the complete opposite of what he had had to endure with his own stepfather, and that, unfortunately, was not particularly nice. As I have said, with the aid of his fiancée, or partner, he maintains that since 2013 there has been no substance abuse.  He obtained a job as a scaffolder, as I have already mentioned, and maintained his employment for a year and a half until work dropped off, and they then moved to Kalgoorlie when he was working in gardening business and enjoyed the work and was working very hard and staying away from difficulties.  He said at no stage was he aware of the warrant, which is probably understandable, but clearly, the police were aware of where he was.

29Insofar as his risks of recidivism, at paragraph 12.2 the psychologist proffers a low risk, subject to maintaining lack of addiction to either alcohol or both alcohol and drugs.  At paragraph 12.3 the psychologist talks of the positive aspects in his life, which may help to maintain an offence free lifestyle.  The comment is made, "a lack of extensive prior violent offending", that is true, and the crimes involved were not numerous but, as I indicated, were obviously of dimension.  The report notes his ability to be able to maintain full employment, and that he is committed to full employment once released.  He is committed to supporting the family.  He has, indeed, no history of predisposition to violence, provided he is not involved with drugs.  He has positive attitudes in regard to authorities and he was seen to have a good insight into his issues, when consuming illicit substances, importantly, has taken full responsibility for his unlawful behaviour and has not in any way minimised those.

30Counsel was at pains to stress the period over the last five years, albeit that he had jumped parole, but the positive aspects of his life, in particular, the lack of addiction to drugs or alcohol, and stressed the issue of delay, the fact of the plea of guilty and the appropriate discounts to be taken into account, and despite the seriousness of the matter, submitted that an appropriate sentence should involve a period of immediate imprisonment plus a community corrections order by way of combination.

31I have given that submission consideration, especially after the positive Corrections report, and there is no doubt that when the Act was amended, such a combined sentencing structure is available, and the principles that relate to such have been set out in the case of Boulton v R [2014] VSCA 342, and further comments have been made by the Court of Appeal since. It is a difficult balance. There is no doubt of the need, because of the seriousness of these matters, for a period of immediate imprisonment. These are particularly serious offences, to attack people going about their normal lifestyle, off to the airport or coming back from work, early in the morning, in their own suburbs, is a matter that warrants strong denunciation and a sentence which affects specific deterrence and general deterrence.

32Having given the submission considerable thought, I have concluded that this is not an appropriate matter for a combined immediate imprisonment/community corrections order, even after taking into account all the ameliorating factors that relate to this sentence, in particular, the issue of delay.

33Doing as well as I can, taking all such matters into account, and importantly the manner in which you have spent your last five years, I have determined to sentence you therefore, Mr Bamford, as follows.  If you would be good enough to stand up, please.

34On the first charge of robbery, a period of imprisonment of 18 months. 

35On the charge of armed robbery, a period of imprisonment of three years. 

36I order that six months of the sentence on robbery be served cumulatively with the sentence on armed robbery, making a total effective sentence in regard to the Indictment, of three and a half years.

37Insofar as the summary matters, you will be convicted and sentenced to three months on each charge and I order that one month of each charge be served cumulatively upon each other and upon the total effective sentence imposed in the Indictment, making a total effective sentence for both the Indictment and the summary matters of three years and eight months.

38I further order that the minimum period that you will serve before being eligible for parole is a period of two years.

39Pursuant to the provisions of s.18 of the Sentencing Act 1991, I declare that the 183 days that you have served to date in remand be deemed to be served of this sentence and a declaration to that effect be made in this Court.

40The effect of that, Mr Bamford, given you have served six months, will be that you will not be eligible for parole for a period of a year and a half. However, it is important for me to indicate to you that had you not pleaded guilty, and it is difficult in cases such as this where Parliament asks for an indication to be given to you, as to what the sentence would have been had you not pleaded guilty, and that indication is said to relate to only that factor when there are other very important factors in your case, especially the issue of delay and the manner in which you have turned your life around, but doing as best I can to comply with the will of Parliament, I declare, pursuant to s.6AAA of the Sentencing Act 1991 that had you not pleaded guilty the total effective sentence I would have given you is a period of four years and eight months with a minimum of two years and eight months. 

41I have signed the 464ZF order.  That essentially requires you to undertake a forensic sample.  Someone will come and see you in prison in that and can I ask you to take that, because otherwise police can come back here and get an order on which I can compel the taking of such order.  I have signed the disposal order.

42So effectively you have done, as I said, six months and before you will be eligible for parole for these offences you have got to do another year and a half. I hope that you are lucky enough to get your parole.  No one really knows what is happening these days.  Certainly it used to be that once you had done your minimum period you got your parole, but I think you might be lucky enough.  It seems to be the sexual offenders are not getting parole, being made to serve their full periods.  Hopefully you can take steps to try and make sure the authorities are aware when you are finished, and you can get back to Western Australia and your family as soon as you can.

43Yes, are there any other matters, gentlemen?

44MR BAARLINK:  I have noted Your Honour's comments in relation to the delay.  If Your Honour was minded to make the reasons for sentence available as well I will pass them on as well.

45HIS HONOUR:  Yes, I will.  I mean I make it clear, I make no criticism of the officer involved.  Apparently he was trying and he could not get permission.  It just seems to me ridiculous that someone facing such serious charges can be left at bay and no one does anything about it.

46MR BAARLINK:  Yes.

47HIS HONOUR:  It is an amazing thing to me.  Yes, all right, then.  All right, well, good luck, Mr Bamford, and you can take the prisoner away, Officer, thank you.  Thank you, gentlemen.

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