Director of Public Prosecutions v Bell

[2018] VCC 177

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 16-02147

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN CAMERON BELL

---

JUDGE:

HIS HONOUR JUDGE GUCCIARDO

WHERE HELD:

Melbourne

DATE OF HEARING:

DATE OF SENTENCE:

2 March 2018

CASE MAY BE CITED AS:

DPP v Bell

MEDIUM NEUTRAL CITATION:

[2018] VCC 177

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms I. Spence

For the Accused

Mr M. Sturges

HIS HONOUR:

Dean Cameron Bell, you have pleaded guilty to four counts of theft and two counts of armed robbery.  During the period of offending, you were 36 years of age, you are now some 38 years.

The circumstances of your offending are as follows.  They are contained in the summary of prosecution opening for the plea, which was exhibited and will be retained on the court's file.

On 29 February 2016 at approximately 11.10 am, you attended the Aldi supermarket located in Chirnside Park.  As the checkout attendant opened her till to transfer money into the secure drop box, you appeared at her side and began grabbing money from the draw, calmly telling her to "just relax".  She screamed and you fled out the front entrance of the supermarket carrying $1,960 in cash.

You were followed by another supermarket employee, who managed to grab a hold of your arm.  You turned to him and said "let me go, I have a syringe".  He let go of you, and you fled. 

A third employee followed you and saw you run into a nearby park and enter a Holden Commodore station wagon.  The car, driven by another male, took off down the Maroondah Highway. 

On 15 April at approximately 11.20, you attended the Woolworths supermarket located in Kilsyth together with another male.  The checkout attendant was in the process of serving another customer when she noticed you and another male approach.  She opened the till to retrieve the customer's change, you reached across the counter in an attempt to take cash from the open drawer.  She slammed the door shut to stop you, jamming your hands in the process.  You told her "Just let go and it'll be all over, just let it go". 

She managed to ring an alert bell behind the counter and screamed for help.  You eventually managed to free your hand from the drawer, grasping multiple 20 and 50 dollar notes, totalling $550, before fleeing out the front entrance with the other male. 

On 24 May, you attended The Reject Shop store located in Kilsyth.  You selected a packet of nuts and approached the register, paying for them with a two-dollar coin.  As the checkout attendant opened the till to drop the coin in, you reached over the counter and began grabbing money from the open drawer.  The attendant attempted to slam the door shut, but you resisted, pulling it open and telling her to relax.  Eventually the attendant complied and stepped back from the register, and you then attempted to remove the entire money drawer.  Unable to do this, you began putting handfuls of one and two-dollar coins into your jacket pockets, amounting to approximately $500 before quickly exiting the store.

On 10 September 2016 at approximately 2.10 pm, you were dropped off outside the Not-Quite-Right supermarket located in Kilsyth by co-accused Hopcraft.  You entered the store and selected a drink before making your way back to the front of the store.  The checkout attendant noticed that you seemed either to be drug-affected or walking with a limp, and she directed you to the checkout in order to pay the 70-cent item. 

You provided her with a two-dollar coin, and as she opened the till to retrieve your change, you reached across the counter and grabbed a number of 20 and 50 dollar bills from the drawer.  The attendant attempted to stop you by slamming the drawer shut, and you in turn told her "don’t stop me, I need to do this".

Considering her safety, she stepped away from the register.  Another customer noticed what you were doing and yelled at you to stop.  As you fled, the checkout attendant grabbed you by your jumper, but you managed to break free and run out the front entrance towards
Mount Dandenong Road.  You were observed entering a Commodore driven by co-accused Hopcraft.

On 14 September, were seated in the backseat of the same Holden Commodore driven by Hopcraft, along with his girlfriend.  You were armed with a large hunting knife.  You were wearing a dark baseball cap and hoodie.  You instructed Hopcraft to pull up to the front entrance of the Chirnside Park Shopping Centre and then wait for you to return. 

With the knife concealed in the hoodie, you entered the Priceline pharmacy and approached the front register.  As you approached, you withdrew the knife and instructed the attendant to open the register.  As she did, you reached over the counter and began removing notes from the till.  You then instructed her to give you the two-dollar coins as well, and she complied, placing the coins on the counter.  You grabbed the coins before fleeing the store with about $302 in cash.  That was Charge 5, of armed robbery.

Charge 6 of armed robbery related to the same day.  Your co-accused Hopcraft drove you to The Reject Shop store located in Croydon.  You were wearing a mullet-style wig as a disguise.  At approximately 2.30 pm, you entered the store.  You immediately said to the attendant at the front register, "give me the money, I'm not fucking around".  The attendant hesitated and began to shake, fearful and knowing that the register would not open unless an item was scanned.

You again said to him "I'm not fucking around".  Eventually you picked up a lighter from the counter and thrust it towards him so that he could scan it to open the till, which he did.  At this point, he noticed you had a large hunting knife in your hand.

You looked inside the drawer and asked the attendant "is that all there is?"  He replied that it was and you instructed him to start passing you the notes and coins.  You collected those before fleeing the store with about $350 in cash.

About a week later on September 23, you attended the Anaconda store in Bayswater North, again donning a wig as a disguise.  As you entered and made your way directly to the Helly Hansen coat stand, you were observed by a store employee who was suspicious due to the large number of thefts at the store.  She lost sight of you for a short time, as she was preoccupied serving another customer.

She soon saw you again, this time in the sports section, before observing you running towards the front exit clutching at least two items in your hands, one being a blue jacket.  As you fled the store, you ran into Bayswater Road before doubling back. 

The employee followed you, instructing you to drop the items, and that the police were being called.  You ignored her and fled.  Hopcraft later picked you up in a nearby McDonald's a short distance away.  The value of the stolen items was $500.

About a month later, you were arrested in October 2016, and later participated in a record of interview.  You largely gave no-comment answers.

Armed robbery is a very serious offence, which carries a maximum penalty of 25 years' imprisonment.  The legislators have fixed this penalty, and it is a clear indication of the gravity of the offence.  Theft carries ten years.  Similarly, that maximum reflects the serious nature of this type of conduct.  I must take into account these sanctions as I consider a just penalty in your course.

Your co-accused Hopcraft was arrested and interviewed, and then charged.  He was committed to stand trial, failed to appear, whereby a warrant for his arrest was issued.  He was arrested and remanded in custody, and his trial is listed next July.

The charges concerning you were resolved at the committal mention, and your plea indication was made at an early stage, and as a result of which, pursuant to the law, a discount will apply to your sentence.

I accept that your plea has facilitated the course of justice by your acceptance of responsibility, and has utilitarian value of having avoided a criminal trial.

You were remanded upon being arrested, and have now spent a number of days on remand.  Is there an agreed number for that?

MS SPENCE:  505 days, Your Honour.

HIS HONOUR:  Which I will note in the records of the court as presentence detention in those records.  Although the matter resolved in December 2016 and March 2017 when the plea came on before Her Honour Judge Hampel, the matter was adjourned on your application to obtain a psychological report.  When the matter again came before the court in July 2017, the matter was again adjourned at your application, because there had been a reference to a biased report in the psychologist's report to the court based on your say so.

At the next court date on 14 November 2017, the matter was further adjourned until December and then January, when there was some miscommunication between your counsel and your instructors. 

Finally, a plea was conducted in January of 2018.  I take this delay generally into account.  The delays for most of 2017 were due to some misunderstandings on the part of your legal representatives, and not by any desire on your part to forestall the sentencing process.  I will take into account not only the days on remand as presentence detention, which are rightly accounted for, but consider that a slight moderation will apply due to the fact that you have had this uncertainty hanging over your head for a considerable time.

The circumstances of the offending are objectively serious.  This gravity can be gleaned from the way you went about the armed robberies in particular.  The thefts and armed robberies were committed by you on soft targets.  The people involved on each occasion were going about their work in a retail environment, where they were confronted by you, intent on stealing.  You imposed your will upon them by force and surprise, taking advantage of vulnerable workers who were no doubt terrified and traumatised by your behaviour. 

On the occasions of the two armed robberies, there was demonstrated a degree of planning at least on your part.  You directed or instructed the driver car in which you travelled to stop at particular locations and stores.  You wore a wig on two occasions to disguise your identity, and on another you wore a baseball cap and hoodie to hinder identification.

In relation to the first armed robbery, you were armed with a knife which you withdrew from your hoodie, and which was visible by the attendant at a pharmacy.  You also held a large hunting knife when you robbed The Reject Shop in Croydon. 

Although I received no victim impact statement in relation to these matters, I can reasonably infer the victims would have been scared and upset by your conduct.  These events often leave upon innocent victims traumatic responses, ongoing hypervigilance, anxiety and fear, which affects their whole lives and impacts many different aspects for a long time.

I take both the impact on your victims and the objective gravity of the offending into account.  I take your personal circumstances into account.  You are 38 years of age, the youngest of three children.  When you were 14, your parents separated.  You have a good relationship with your father and siblings.  Your mother passed away in 2005.

You have never married, but have a ten-year-old daughter, though have you very limited contact with her.  There are no other children.  There was no history of violence or abuse in the home.  From Year 7 to 10, you attended the Seventh Day Adventist Academy in Lilydale.  There you were sexually assault in Year 8 by a teacher, the year that your parents separated.  You became a boarder, you withdrew, and felt deep guilt and shame.

This abhorrent conduct has profoundly affected your life.  The prosecution did not challenge this assertion, there being no evidence either way about it nevertheless.  They provided a sentence of Smallwood J of 2002, in which His Honour has sentenced the teacher at the academy for sexual assaults upon  another student at the relevant time.

I accept that such behaviour upon children often causes victims profound and longstanding distress and trauma.  You told Ms Carla Lechner, a clinical psychologist, that a student in the year below had also been abused and committed suicide. 

By age 15, you were using heroin, by age 16, you were addicted.  You left school at Year 10.  You attended Teen Challenge, a rehabilitation program run out of Kyabram, completing successfully 21 months on the program.  Unfortunately the underlying issues which motivated your use of drugs were not really addressed.  You relapsed shortly thereafter.  You have only been able to discuss this matter openly very recently.

However, both in terms of work and accommodation you have experienced instability over the last two years.  You have had no period of sustained employment, some in the building trades.  Your accommodation was supported by Link Out, but in 2016 that accommodation was withdrawn.  You could no longer live in the house, and you relapse into heavy drinking, intermittent drug use, and committed this series of offences at this time.

Although you referred to being in a coma for two weeks on three occasions due to overdoses, there was nothing relied on in relation either to an acquired brain injury, or matters which enliven principles of Verdins.  You are of average intelligence, and can reflect on the impact of your behaviour on others.  You remain often overwhelmed by emotional factors which, together with drug abuse, tends to undermine judgment and decision-making.  You have learned to blackout negative feelings, but still experience anger and disappointment at your life choices.

Your consumption of cannabis, which began at about age 13, stopped by age 20 because you were very anxious, but you began to take heroin.  You also used amphetamine and ice on and off, and you are now on methadone and your drinking has subsided.  The Beck Depression Inventory as administered by Ms Lechner found that you fell within the moderate range, with a diagnosis of clinical depression.  However, I note you did not seek to minimise or excuse your actions. 

You present with an opioid stimulant use disorder.  These disorders are exacerbated by residual past trauma, symptoms related to your sexual abuse, which you have not previously addressed fully.

In my view, although this background can go some way to explain and address your offending conduct, neither the childhood trauma, nor the more recent difficulties that you've experienced, provide a significant moderating consideration.  You have a criminal record, which can only be described as a concern for your prospects of rehabilitation, and as requiring a significant amount of personal deterrent.

Your priors are contained in over 20 pages of your criminal history report.  They span from 1997 to 2013, some 16 years.  There are many relevant aspects to your priors.  Among them, the frequent recurrence of dishonesty offences, the possession of weapons, of dangerous articles, drug priors to robbery, to causing injury recklessly, burglaries, thefts, and in 2002, a prior for armed robbery.

In the next 15 or so years from the sentence in 2002, a sentence of this court by Dyer J for armed robbery, you have thefts, robbery offences in 2004, 07, 08, 09, 10 and 12.  Since 2002, you have received a number of orders for imprisonment as well as community-based dispositions, which endeavoured to provide you with assessment and treatment for drug abuse, and an opportunity for you to rehabilitate.

In 2006, you breached a community correction order of 2005, and you were placed on an intensive corrections order.  You breached that order in 2007.  In 2008, the sentence for robbery was two years, with a non-parole period of one year.

In 2009, you received nine months for a series of thefts.  In 2010, for a series of robberies you were sentenced to two years with 18 months' non-parole period.  In 2012, you were placed on a ten-month community corrections order, but in 2013 a breach of that order led to a six-month, wholly-suspended sentence.

This is a very poor history.  In 2002, Dyer J sentenced you for armed robbery.  You were drunk, you entered with two other males a card and gift shop.  You told the shop assistant you had a gun.  It was a plastic imitation firearm you had stolen.  His Honour noted your many priors, even there, some 31 prior convictions from seven court appearances between 1995 and 2001.  He took into account your history of drug and alcohol abuse, your attempted suicide some six months before.  He noted you had been accepted into a drug rehab course in custody.  You were in effect a youthful offender. 

You were sentenced to two years with a non-parole period of 18 months.  You are no longer a youthful offender. 

A neuropsychological assessment report of Dr O'Halloran from 2010, was also tendered.  It had been prepared to assess the presence of an acquired brain injury.  The report found your cognition to be intact, found no evidence of a brain injury, with average range of functions across all cognitive domains.

It did however give a detailed summary of your history of polysubstance abuse, which has included cannabis, alcohol, heroin, amphetamine and benzodiazepines.  You told the writer of that report that you had served four prison terms, all for robbery charges committed in order to obtain money for substance abuse.  Unfortunately, you have not progressed much further.

It was sought to link your drug abuse to the offending, which was reasonable and understandable, and then it was sought to link the sexual abuse to the descent into the hell of drug use, linking the offence to the abuse.  There is no doubt your drug-taking was probably linked to your experience as a victim in your young years.  This link can only provide some moderation to your sentence.  The principles of general deterrence, aimed at those who are like-minded to rob soft targets, whether armed or not, must be paramount, as is community protection and the denunciation of this conduct.

Specific deterrence in my view follows upon your prior history.  The community looks to the court to protect it from predatory behaviour by just punishment.  I have taken into account the references tendered from
Ms Curry, who writes of your remorse as expressed by you, the difficulties you have to resolve around your abuse, your newfound interests and commitments to faith, and of her support for you, which is a very positive aspect.

Each of these factors offer a little hope in what are otherwise guarded prospects for rehabilitation.  I accept that the offending pertaining to the armed robbery occurred very close in time, and forms in effect a course of conduct.  But each instance must carry with it a portion which is separate and distinct punishment with periods of concurrency.

The thefts occurred separately, and will have a cumulative component for each in recognition of the discrete occasions of each.  I accept you have recently been a billet at Albion at the time of the plea, and this and the courses which you have been able to undertake are to your credit.

An issue arose during the plea as to the prevalence of these type of offences.  The prosecutor submitted that because these instances of armed robberies and thefts on vulnerable targets are prevalent, that that is an aggravating factor.  The defence disagreed with this proposition.  While it can be said in general terms that crimes of this type, thefts from shops and armed robbery on retail outlets - that is, soft targets, are a well-recognised problem in our society.  I have scant evidence that such offences are prevalent, except an assertion by the prosecutor from the Bar table.

Armed robbery has been, on one view, consistently prevalent for decades.  This aspect in my view is not a circumstance of aggravation, or a dominant factor in the sentencing process, but is one of the factors to be considered, and I do consider it in imposing an appropriate punishment on you.  Please stand, Mr Bell.

On Count 5 of armed robbery, you are convicted and sentenced to five years' imprisonment as the base sentence.

On Count 6 of armed robbery, you are convicted to five years' imprisonment.

On Counts 1, 2, 3, 4 and 7 of theft, you are convicted and sentenced to nine months on each.  I order that one year on Count 6 be cumulative on Count 5, and that one month of each of the theft charges be also cumulative on Count 6, and the cumulation portion of Count 5, making a total effective sentence of six years, five months.  I order a non-parole period of three and a half years.

I note that you have as of today - excluding today, been held in presentence detention for 505 days.  Did that number exclude or include today?

MS SPENCE:  Excluding today, Your Honour.

HIS HONOUR:  Yes, thank you.  Are there any other ancillary orders?

MS SPENCE:  Just the disposal order, Your Honour.

MR STURGES:  And the s.6AAA, Your Honour.

HIS HONOUR:  Yes.  But for your plea, I would have sentenced you to eight years' imprisonment with a non-parole period of five and a half years.  I will sign the disposal order that is in relation to some items in the Schedule.  Yes,
Mr Bell can be removed, thank you.

MR STURGES:  As Your Honour pleases.

‑ ‑ ‑