Director of Public Prosecutions v Becke

[2024] VCC 198

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case Nos. CR-19-02441

and CR-21-00259

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMILY BECKE

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023 and 13 February 2024
DATE OF SENTENCE:	16 February 2024
CASE MAY BE CITED AS:	DPP v Becke
MEDIUM NEUTRAL CITATION:	[2024] VCC 198

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Sentence – Contravention of Community Correction Order – Contravention by non-compliance – Earlier sentence set aside – Resentenced on original charges of attempted armed robbery,  prohibited person using an imitation firearm and armed robbery – Extent to which offender complied with order taken into account - Totality in respect of sentence on unrelated offending

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Goetz	Ms Abby Hogan, Solicitor for Public Prosecutions
For the Accused	Ms E Byrt	Hoffman Carroll, Criminal Law

HIS HONOUR:

CR-19-02241

1Emily Becke, on 5 May 2020 you pleaded guilty before her Honour Judge Fox (as her Honour then was) to an indictment containing one charge of attempted armed robbery and one charge of being a prohibited person using an imitation firearm. These offences were committed by you on 13 July 2019. You also pleaded guilty on 5 May 2020 to three related summary offences of making a false report to police and two charges of stating a false name to police.

2On 27 July 2020, you were sentenced on the indictable charges to an aggregate sentence of imprisonment of 384 days and a Community Correction Order (“CCO”) for two years and six months, with certain treatment and rehabilitation conditions.

3Her Honour Judge Fox declared 380 days pre-sentence detention (“PSD”). On the summary charge of make false report to police you were convicted and fined $250 and on the two charges of stating a false name to police you were convicted and discharged. These three summary charges are not before me today.

4You contravened her Honour’s CCO and that order was varied by me on 21 September 2021 to commence from the completion of your then term of imprisonment and last for 30 months. I convicted and fined you $300 in respect of a charge of contravening a CCO

5On 17 November 2022, you were brought before me for another contravention of that order and I further varied the CCO to commence on 17 November 2022 and end on 16 August 2024. I convicted and fined you $250 in respect of a further charge of contravening a CCO.

6It is now alleged that you have again breached that order as follows:

(a)   You failed to undergo treatment and rehabilitation as required on three occasions as listed in the schedule to the charge and summons (‘the schedule’).

(b)   You failed to be supervised, monitored and managed as directed as detailed in the schedule.

7The breach is admitted. You are now in custody on remand for unrelated matters. Accordingly, it is accepted that the only sentences available to me in these circumstances are sentences of imprisonment.

8I do not consider it is appropriate to impose an aggregate sentence in relation to the charges of armed robbery and prohibited person using an imitation firearm for the reasons explained by the Victorian Court of Appeal in DPP (Vic) v Frewstal Pty Ltd.[1]

[1] [2015] 47 VR 660, 670 [44]–[45] (Maxwell P).

9I incorporate her Honour Judge Fox’s reasons for sentence dated 27 July 2020[2] and adopt them for the purpose of sentencing you in respect of this matter.

[2] ([2020] VCC 1125.

10I have also taken into account the extent to which you have complied with the two CCO’s imposed on you in this case pursuant to s83AS(2) of the Sentencing Act 1991 (‘the Act’).

11I also have had regard to the excellent written and oral submissions of your counsel and the prosecutor, and the contents of the documents exhibited on this plea hearing as set out in the table of exhibits attached to these reasons for sentence.

12Accordingly, I set aside her Honour Judge Fox’s orders of 27 July 2020 and my orders of 21 September 2021 and 17 November 2022[3] and I resentence you as follows.

[3]     See Luu v The Queen [2018] VSCA 92 [20]–[23] (Ferguson CJ, Osborn and Beach JJA) (‘Luu’).

13On Charge 1 (attempted armed robbery) you are convicted and sentenced to imprisonment for two years and six months.

14On Charge 2 (prohibited person using an imitation firearm) you are convicted and sentenced to imprisonment for one month.

15I order the sentence on Charge 2 be served concurrently with the sentence imposed on Charge 1, making a total effective sentence of two years’ and six months’ imprisonment.

16On the charge of contravening a CCO, you are convicted and fined $300 and I refer that fine to the Director of Fines Victoria for collection and management.

CR-21-00259

17On 23 July 2021, I sentenced you on a charge of armed robbery committed by you on 19 October 2020, during the operational period of her Honour Judge Fox’s CCO. I sentenced you to 18 months’ imprisonment together with a CCO for three years to commence on your release from custody with certain treatment and rehabilitation conditions. I declared 275 days PSD.

18You were brought before me for contravention of that order and, on 17 November 2022, I confirmed the 18 months’ imprisonment and sentenced you to a new CCO commencing 17 November 2022 and ending 16 February 2025, with certain treatment and rehabilitation conditions.

19It is now alleged you have contravened that CCO in the manner earlier set out in these sentencing remarks and in the schedule to the relevant charge.

20The breach is admitted by you. You are now in custody on unrelated matters, and it is again accepted that the only sentence available to me is a sentence of imprisonment.

21The circumstances of your offending conduct in relation to the armed robbery charge are set out in my reasons for sentence of 23 July 2021 (‘Reasons’)[4] at paragraphs [3] to [17]. I incorporate those Reasons into these reasons for sentence.

[4] [2021] VCC 1040 (‘Reasons’).

22I have also had regard to the likely impact of your crime on the victim, Mr Kommasani, which I set out in my Reasons at paragraphs [18] to [21].

23As I observed when sentencing you in July 2021, armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel at the plea hearing conceded this is a serious offence.

24I also observed in my Reasons this was a serious example of the offence. You bailed up a lone man using an imitation handgun, which your victim would have thought was real, in the early hours of the morning. The premises you targeted for this crime were a ‘soft target’, in that Mr Kommasani was working alone with no security other than CCTV operating.

25I note you demanded Mr Kommasani open a cashdrawer and put money into a bag you produced. A number of times you threatened that if he called the police you would shoot him. You had the imitation gun pointed at him throughout the incident. He would not have realised it was not a real handgun. It must have been a terrifying ordeal for him.

26On that occasion I accepted your counsel’s submissions there was cogent evidence of mental impairment and a causal connection between the impairment and your offending conduct, such that your moral culpability is reduced, thereby reducing the weight I would have otherwise given to the principle of denunciation.

27I have taken into account the extent to which you have complied with the CCO in accordance with s 82AS(2) of the Act.

28I have taken into account the contents of the exhibits tendered at this plea hearing as set out in the List of Exhibits attached to these reasons for sentence.

29I have also had regard to the excellent written and oral submissions of your counsel and the prosecutor.

30Accordingly, I set aside my orders of 23 July 2021 and 17 November 2022 and resentence you as follows.

31On the charge of armed robbery, you are convicted and sentenced to three years’ imprisonment.

32I must now determine how these two sentences are to relate to each other, in particular having regard to the totality principle. I note there is no overlap between the offending conduct comprising the offences for which her Honour Judge Fox sentenced you and the offence for which I sentenced you. Nonetheless, I will allow for a measure of concurrency.

33The sentence of three years’ imprisonment on CR-21-00259 will be the base sentence and I order two years of the total effective sentence imposed on CR-19-02241 be served cumulatively on the base sentence, making an overall total effective sentence of five years’ imprisonment. I fix a non-parole period of 1,134 days. I declare PSD to be 1,137 days, which is calculated as follows:

380 days PSD declared by her Honour Judge Fox, together with four days of her Honour’s sentence which you served in custody, making a total of 384 days.

482 days referable to the sentence I imposed on you on 23 July 2021, which includes my declaration of 273 days PSD.

A further 173 days you have served in custody as a result of the bench warrant I issued on 19 May 2022 for your failure to appear at previous contravention proceedings held before me. That bench warrant was executed on 28 May 2022 and you were remanded in custody on that date and were not released until the hearing before me on 17 November 2022. This is PSD I did not declare on 17 November 2022, because I did not sentence you to a further term of imprisonment on that date.

98 days by way of PSD from the time you were remanded by me on 10 November 2023 in relation to these matters until today, not including today.

Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to an overall sentence of seven years’ imprisonment with a non-parole period of five years.

34On the charge of contravening the CCO in case CR-21-00259, you are convicted and fined $300, and I refer that fine to the Director of Fines Victoria for collection and management.