Director of Public Prosecutions v Beirouti

[2016] VCC 465

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02271

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN DAVID BEIROUTI

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2016. 19 April 2016 (for further plea and sentence)
DATE OF SENTENCE:	19 April 2016
CASE MAY BE CITED AS:	DPP v Beirouti
MEDIUM NEUTRAL CITATION:	[2016] VCC 465

REASONS FOR SENTENCE
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Subject:  Sentencing; armed robbery

Catchwords:             Plea of guilty; soft target; drug addiction; youthful offender; significant rehabilitative steps during delay before identification

Legislation Cited:     Sentencing Act 1991 (Vic) s 6AAA

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342

Sentence:                  CCO for 2 years with unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning	OPP
For the Accused	Mr S. Kenny	VLA

Pages 1 - 12

 

 

HER HONOUR:

1Glen David Beirouti, you have pleaded guilty to a charge of armed robbery. 

2You have also admitted a prior criminal history to which I shall refer later.  The charge arises from your actions on Friday 29 August 2014.  At approximately 1.40 am you entered the United service station store on South Gippsland Highway, Dandenong South, approached the counter and asked the attendant the cost of a packet of chewing-gum.  When told the price, you started counting your coins, then said you had more money in your car and left the store.  You returned a few minutes later, picked up the same packet of chewing-gum at the counter and offered the money to pay for it.  However, as the attendant opened the cash register, you grabbed his hand or wrist and at the same time you were holding a kitchen knife in your left hand.  The knife was approximately 30 cm in length with a thick blade.  You said, "Give me all the money", whilst still holding the attendant's hand.  He pulled away and said not to do anything and he would give you the money.  You handed him a white plastic bag and told him to put the money inside, which he did.  As he did this you pulled the sides of the hood that you were wearing on your jumper - it was already up and you pulled the sides as if to cover your face.  You then fled the store with the money and the knife. You stole $350.

3CCTV footage in that store captured you and some of the incident, including you holding the knife and the attendant's hand.  I have seen some of those stills and the knife seems to me large and menacing.  Unsurprisingly, the attendant was very shaken by this incident, fearing that he was going to be stabbed by you if he did not comply.  He has not made a Victim Impact Statement, but I am satisfied that it is likely that the incident was not only very frightening and upsetting for him at the time but that, like most people working alone through the night in such vulnerable situations, he has probably felt more insecure than previously if he is still working in those types of circumstances. 

4I am told that you committed this offence whilst heavily affected by the drug “Ice”, to which you were heavily addicted at the time.  You committed the robbery for money as you were reluctant to return home to your mother, owing another week's board or contribution the household, and being behind with previous payments, all because you were spending all of your Centrelink benefits on drugs. 

5The CCTV pictures were circulated amongst police and in the fullness of time and investigation, you were able to be identified, but that did not occur until more than a year later.  You were contacted by police, and on Wednesday 23 September last year attended a police station by appointment, where you were arrested, cautioned and then participated in a recorded interview, in which you made extensive admissions in relation to committing this offence.

6You describe that you were highly addicted to Ice at the time, and had come to the point where you were so paranoid to go home without money for your mother that you thought she would turn you out and you would be homeless. You also said that you had taken the knife from the kitchen of the friend with whom you had spent the afternoon acquiring and then smoking ice.  You said you had driven to the service station and sat outside in the car thinking about it and in a state of mind that you described as, "Trying to fight it". But then you did go into the petrol station store and, as I have described, committed the armed robbery.

7You admitted that you were holding the knife and pulled it out to threaten the attendant while telling him to put the money in the bag.  You said you never thought you would do something like that but you knew that drugs do make people, as you say, “do stupid stuff”.  You had been taking those drugs for some time and knew their effects on you.  You were charged and bailed that day so have not spent any time in custody for this offence. 

8Armed robbery is a very serious offence and that is reflected in the maximum penalty of 25 years' imprisonment which is the second highest possible maximum in this state, the only one more severe being life imprisonment. 

9There are, of course, a wide range of circumstances that constitute armed robbery, and this incident is, in my view, at the lower but not lowest end of that possible range.  The factors keeping it low in seriousness are that there was no sophistication about how you went about this offence. There was no major effort to disguise yourself by wearing a mask or gloves, although it appears you put the hood of your jumper up and did pull it a bit more around your face whilst waiting for the bag to be filled with money. 

10However, this offence was committed against a person who is colloquially regarded as a “soft target”.  That means this was a person working alone at night where it is unlikely there would be other people around for his protection and where it is also known that there is likely to be cash kept.  A person in the position of the attendant that night, Mr Arthuluri, is entitled to expect to be able to perform his work without being threatened with harm from someone like you, in particular, with a weapon.

11That fact that you were highly affected by drugs at the time is not only not an excuse but, in my view, makes the situation worse.  If your rational thoughts were reduced by the effects of drugs, the situation could easily have become much worse because of your being volatile and not exercising normal controls over your reactions. 

12As is frequently said in this court and confirmed in the Court of Appeal, incidents of this type require sentencing considerations of general deterrence and community denunciation and just punishment, but in particular general deterrence is the most important sentencing factor.  That means the sentence should send the message to others tempted to engage in this type of offending, that to do so will attract serious punishment. 

13You have pleaded guilty to this charge and are entitled to considerable leniency for that.  In my view, it cannot be said that this was evidence of instant remorse because you did not approach police and confess to the offence until more than a year later.  However when that did occur, you showed fulsome cooperation, and once charged, you indicated a plea of guilty at the earliest opportunity.  You are entitled to leniency for the utilitarian value of saving the community the time and cost of disputed hearings, both committal and trial, and you also saved the need for the store attendant to have to come to court and undergo the stress of retelling what occurred.  Further, your plea of guilty indicates a willingness to facilitate the course of justice and an acceptance of responsibility for your actions. 

14In your case I also accept that there has been real remorse on your part. You do seem to have explained in your record of interview that you struggled with yourself for a while in your car, knowing that what you were about to be doing was wrong, but at the time thinking that it was your only way of obtaining money to make payments that you knew you owed your mother.  Nevertheless, at least it seems you did struggle with your conscience for a while before going ahead with the intended offence. I accept that it has been on your conscience ever since and that the plea of guilty reflects that. 

15I turn now to your personal circumstances.  You are now aged 25 and were 23 at the time of the offence.  

16You were born in Western Australia and are the youngest of five siblings.  I am told that your parents separated when you were very young and your mother moved you and your siblings to live with her mother in Dandenong when you were aged about six.  You were raised in outer eastern suburbs of Melbourne by your mother and grandparents in what you apparently describe as a generally stable and happy environment.  You maintained contact and a close relationship with your father, although for most of your formative years he was living far away. He has apparently moved to live nearby in recent times.  You are apparently close to your mother who is in court supporting you, and were living with her at the time of this offending. 

17I am told that you completed year 12 of school in 2009, and then commenced an apprenticeship as a boiler-maker.  After two years of that you moved to Darwin to work on the construction of a power station.  That work was arranged by your father who was also working there.  You were in Darwin from late 2011 until early 2013, but on your return to Melbourne were unable to find work and that continued for about two years.  I am told that mid-2015, you started working at an abattoir in Cranbourne, but after about five months injured your hand and were forced to leave.  You found such work hard to obtain this year. I was told last week that earlier this month you started working for another company in the meat industry, hoping that would become permanent or an ongoing position and I have today received a letter confirming not only that your ongoing work has been confirmed, but that you are regarded as a good employee, punctual with a hunger to work. Therefore, it would appear that apart from a two year interval after you returned to Melbourne in early 2013 until mid-2015, you otherwise have a good work history since leaving school.

18I am told that you were in a relationship for about two years overlapping with your time in Darwin, but that on your return from Darwin that relationship ended.  You have been living with your mother ever since. 

19I am told that in late 2013 in the context of having no employment and finding it hard to obtain, you started occasional smoking of methylamphetamine, but that your use of that drug increased dramatically over the course of the following year, such that by the time of this offence at the end of August 2014 you were spending all of your money on methylamphetamine. 

20Unfortunately, one of your brothers, who is 14 years older than you, apparently has a long-standing history of drug use and violence, and you well know that your mother has struggled with that situation and was very unhappy with you becoming involved with drug abuse also.  It was against that background where you had been paying part of your income, which was solely from Centrelink benefits, to your mother that you did not want to admit to her that you had just spent the whole of your latest Centrelink payment on drugs, and were returning home without that week's monetary contribution for her or any of the amounts you owed from the past few weeks. 

21I have already said that you did not show instant remorse by turning yourself in to police after that event.  However, I accept that in the intervening period, before you were identified and contacted by police, you had taken very significant steps to turn your life around and, in particular, to try to cease using drugs.  I am told that that started in late 2014, and in early 2015 you sought the help of your general practitioner for this and were prescribed some sleep medication.  You also would discuss issues you had with your drug problem with you general practitioner.  You apparently had not sought out any other formal drug treatment or program to assist you to abstain and stay abstinent from that drug or any other drug.  I am told that you had significantly reduced your drug use by the time you were contacted by police, such that when you told them in interview that it was under control in September last year, that was a reasonable description. 

22I am told that since the beginning of this year you have been fully abstinent from illegal drugs.  There was, and remains, no material before me to substantiate this.  However, if you have indeed managed to cease all use of the methylamphetamine to which you were addicted, that is certainly to your credit.  It is a very positive sign for your being able to establish a constructive and law-abiding life for yourself from here on.  It is also consistent with you having obtained employment in the second half of last year, and recently further employment which you hope will continue.

23I have noted the documents tendered as to your original apprenticeship in 2011. A certificate of attainment in relationship to meat processing, obtained in August 2014, indicates that you were considering work in the meat industry before you did obtain that employment halfway through last year.

24I have also read letters provided from both your mother and your father.  Your mother writes of being heart-broken when she found out late last year about the offence you had committed, and being told that it was while you were on Ice.  She says this is especially so as she has been to what she calls "ice meetings", which I am told had been in relation to your older brother's long struggle with addiction.  She clearly supports you and regards you as a very "caring boy", as she says, who tries his hardest.  Her continued presence here is clearly a sign of her further support, her ongoing support for you.

25Your father's reference also is to the effect of your good qualities and that you are a caring and reliable young man.  He states that he has been told about your offending. However the initial letter wrote called it “theft”, then a substitute document presented to me calls it a “robbery” charge.  He does not appear to have been told that it is in fact armed robbery, a very serious offence.  Nevertheless, I accept that he says he has urged you to admit your offending and is aware that you were indulging in drugs at the time, and will be looking for you not to do so from here onwards.  He also expresses his ongoing support for you. 

26You cannot be said to come before the court with an entirely blameless history.  You have one prior court appearance but that was at Dandenong Children's Court almost ten years ago, on a single charge, and for which you received a good behaviour bond without conviction.  I do not regard it of any significance or relevance to the current offending.  I do note that in describing yourself as having been addicted to methylamphetamine for at least the year before the offence, you were admitting to other offending, that is possession and use of illegal drugs.  Nevertheless, you had never faced court for that behaviour and it does not count as prior offending in your sentencing here.

27You are now aged 25 and, as I have said, were 23 at the time of this offence.  It was a serious offence, as I have said, and drug use at the time is no defence whatsoever.  It in no way reduces your blameworthiness for that offence.  However, for a relatively youthful offender, you have used the time since then in apparently taking significant steps to get your life onto a more constructive and responsible path, and drug free.  Had that not occurred during the delay in your being identified for this offence, I would almost certainly have imposed a term of immediate imprisonment owing to the nature of the offence.  However, as the Court of Appeal has said in its guideline judgment in Boulton's case, introduction of Community Corrections Orders has changed the sentencing landscape, and a Community Corrections Order may now be capable of adequately addressing all sentencing purposes for offences which previously almost certainly required imprisonment.  It must be made clear that a CCO is a serious penalty at several levels, requiring considerable input from you, especially given the conditions I am going to impose. 

28Given the steps you have taken, that is of apparently ceasing drug use and finding stable employment, and given your remorse, prompt plea of guilty and relatively youthful age and the available support of your parents, I consider that it is in your own, your family's and the community's best interests that that not be interrupted by imprisonment at this stage.  I had you assessed for a Community Corrections Order. As I have already discussed with your counsel, I note that you were assessed as being at medium risk of re-offending. However, I understand that is a tool used by the community corrections officers, taking into account the factors in your background.  You are otherwise regarded as suitable for such an order. 

29I have decided that I should impose a Community Corrections Order which, in my view, will adequately address the need for general deterrence, provide just punishment, and to the extent it is needed in your case, provide specific deterrence, that is to deter you from further offending which fundamentally means to impress on you to stay off the drugs. 

30Would you stand up now, please. 

31Glen Beirouti, on the charge of armed robbery, you are convicted and sentenced to a Community Corrections Order to last for two years.  I impose the following conditions:  200 hours of unpaid community work - that is to be quite a serious penalty aspect of the order.  I impose a condition for supervision. 
I impose a condition that you attend as directed for assessment and treatment for drug abuse including, if so directed, for testing.  I will also impose the condition for you to be assessed for programs to reduce the risk of re-offending. That may well be referable to the type of program that was discussed with you and if you thought it would be useful to you, that is to adjust your behaviour, teach you ways of confronting stressful situations and adjusting your behaviour and how to cope with that rather than revert to drug abuse.  I have already said supervision. 

32I know that the usual terms of a Community Corrections Order which also, of course, apply, have been explained to you but I will explain them again briefly.  First, you must, within two clear working days of today, that means by 4 pm Thursday of this week, report to the nearest community corrections office which is apparently Frankston.  That address is ground floor, 431 Nepean Highway, Frankston.  You must, throughout the Community Corrections Order, advise community corrections officers supervising you of any change in the address of where you are living or where you are working and you must do that if there is a change within two clear working days of that occurring.  You must obey all lawful instructions and directions of community corrections officers, you must submit to visits if they appoint then, you must not leave the state of Victoria without their prior consent and most importantly, you must commit no further offences during that period. 

33I must explain to you that if you contravene or breach this Order, whether by not complying with any of the conditions or by further offending, you can expect there to be what they call contravention proceedings brought against you. That is likely to be an application brought back in front of me to deal with that breach or contravention and the powers that are open to the court include, to confirm the CCO or to vary its terms by extending or increasing the conditions, or to cancel the CCO and re-sentence you on the offence for which it was imposed.  What, in fact, I would do would depend on the circumstances of the contravention, how much of the order had been completed and your personal circumstances at the time.  You must be aware that those are the consequences if you do not comply and, indeed, contravention of a CCO is itself a separate offence for which a separate penalty could be imposed if the court thought fit. 

34Now, Mr Beirouti, do you understand the conditions and the terms of that order?

35OFFENDER:  Yes, I do, Your Honour.

36HER HONOUR:  Do you agree to comply?

37OFFENDER:  Yes, I agree.

38HER HONOUR: All right, take a seat while - I have just got to go on with one further matter. I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty to this charge but been found guilty after a trial and if all other circumstances had been the same, which, of course, is artificial in many ways. If you had stood trial I would not be inferring any remorse on your part or cooperation with facilitating the course of justice.  What I would have done had you been found guilty by a jury on trial for this offence is to have imposed a sentence of two years' imprisonment with a non-parole period of 15 months. 

39Now, I do not recall any – a forensic sample order was sought?

40MR MANNING:  Yes, that is right, Your Honour, pursuant to s.464ZF.

41HER HONOUR:  Yes.  Mr Kenny, have you anything to say on that.

42MR KENNY:  No, Your Honour, I thought I had said earlier that was by consent.

43HER HONOUR:  That you may have already said but I have been doing several cases in between. 

44MR KENNY:  I appreciate that, Your Honour.

45HER HONOUR:  The nature of the offence, the seriousness of the offence, in my view, does warrant the making of the order, I limit it to a scraping from the mouth.  What that means, Mr Beirouti, is what they call a buccal swab. It is also called a scaping from the mouth, but it is like a long implement with a swab on the end of a stick rubbed against the inside of your cheek and that is for the purpose of taking a forensic sample from which your DNA can be ascertained and your DNA will then be placed on the register - used to be state wide, I think it is now Australia-wide.  The reasons I do that, as I say, the circumstances of the offending being serious and also it was not opposed.  I warn you, as I must, that if you resist the taking of this sample in this manner, police can use reasonable force to take it but it is not intrusive if you do not resist. 

46The situation is, you wait 28 days after today, then you have got 28 days or four more weeks in which to attend a police station to have the sample taken.  I think it has already been entered here that it should be at Frankston police station with the address of that but I think, strictly, you can - there is a list and you can attend a different police station.  So, you wait four weeks, that is the appeal period and then you have got four weeks in which to attend to have the sample taken.

47You can take a seat, Mr Beirouti, while the orders are finalised.  I will have that CCO shown to both counsel to check it reflects what I said.  I am not limiting the unpaid work to any particular part of the two year period so that gives you more flexibility to fit it in with your work commitments as 200 hours is a substantial commitment but you can do it over the two-year period.

48Mr Beirouti, your counsel has checked the CCO, my Associate is going to bring it to you, look through it and you are to sign where it says at the bottom.  I have now signed the CCO, so copies will be made for Mr Beirouti and the prosecution and I have signed the orders.  All right, you can be released from the dock now, Mr Beirouti, your counsel will explain the orders I have signed and give you copies if you need.  All right, can we adjourn, please, till 10.30 tomorrow.

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