Director of Public Prosecutions v Bernath

[2015] VCC 110

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01909

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM BERNATH

---

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2015
DATE OF SENTENCE:	5 February 2015
CASE MAY BE CITED AS:	DPP v Bernath
MEDIUM NEUTRAL CITATION:	[2015] VCC 110

REASONS FOR SENTENCE
---

Subject:Plea – sentencing

Catchwords:            Armed robbery

Legislation Cited:    Sentencing Act 1991

Cases Cited:

Sentence:6 months’ imprisonment and 24-month Community Correction Order

---

APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr M. Roper Mr M. Vella	Office of Public Prosecutions
For the Offender	Ms T. Hartnett

HIS HONOUR: 

1Adam Bernath, you have pleaded guilty to one charge of armed robbery.  Armed robbery carries a maximum penalty of 25 years’ imprisonment.

2You are presently 27 years of age, having been born on 5 March 1987, and you were that age when this offending occurred just over eight months ago.

3You have a criminal record comprising some five appearances in various Magistrates' Courts, about which I will go into more detail later. 

4At the time of the offence you were staying at a room at the Redan Apartments in Redan Street, St Kilda, with your partner whilst looking for more permanent accommodation. 

5The circumstances of the offending are as follows.

6On Sunday 25 May 2014 at about 5.50 pm, you and your partner attempted to gain access to the Redan Apartments and had to be let in the front door by the manager, Steven Wang.  Mr Wang then spoke to you regarding outstanding payment for the room.  As a result of you not having paid the rent, your swipe card access to the apartments had been revoked by the management and you were informed that unless you paid the outstanding amount owed, you would be evicted.

7Shortly after that conversation, at about 6 pm, you left the Redan Apartments.  You were wearing a dark-blue hooded jumper with large white writing on the front with the hood up over your head, dark-coloured track pants and white runners. 

8You walked to Charnwood Road, which is less than one kilometre away from Redan Apartments, where a man was walking towards his apartment in Charnwood Road.  As you and the man were about to cross paths you produced a screwdriver, pointed it at him and demanded "Give me your wallet, don't do anything stupid". 

9The man, now the victim, complied.  He reached into his backpack, took out his wallet and handed it to you.  The wallet contained $80 in cash in the denominations one $50 note, one $20 note and a torn $10 note.  After taking the wallet you ran off in the direction of the Redan Street Apartments. 

10The victim returned home and called police, who arrived at the scene a short time later.  The victim gave them a description of you and indicated the direction in which you had run off.  Knowing the local area well, police attended at the Redan Street Apartments and spoke to the manager, Mr Wang.  Mr Wang told the police that you had recently returned to the apartments and paid him $80 cash in the same denominations and condition as described by the victim. 

11You were arrested on 1 August when you attended at the Moonee Ponds police station, where you were interviewed and made a "no comment" record of interview.  You were then charged and remanded in custody. 

12You entered a plea of guilty at the committal case conference on 24 October 2014. 

13I now turn to your personal circumstances. 

14

As I noted earlier, you are now 27 and you were that age at the time of this offending.  Your criminal history commenced at the age of 19 with an appearance at the Sunshine Magistrates' Court in October 2006, when you were fined and placed on a good behaviour bond for 12 months for driving over the speed limit, failing to give information to police and possessing cannabis.  Some six weeks later, you were again before that court for further driving offences and you received another good behaviour bond, this time for six months, with conditions that you attend driving and, importantly, drug programs.

15Two years later you appeared at the Melbourne Magistrates' Court on burglary, theft, criminal damage and various driving charges for which you were convicted and fined. 

16Some two years after that, you again appeared at the Melbourne Magistrates' Court, this time on an assault charge.  You were put on a community-based order for 12 months. 

17In July 2013, when you were aged 26, you appeared at the Heidelberg Magistrates' Court on a weapons charge, as well as for failing to answer bail, and you received a total fine of $1,250.

18Your childhood and adolescence was generally unremarkable.  You were educated to year 11 standard, and after leaving school you have worked regularly as a furniture removalist. 

19It is apparent, however, that for the last decade you have been struggling to manage a drug addiction.  You commenced using heroin at age 18, and have variously tried either methadone or bupomorphine as a management substitute.  Recently, you returned to the methadone program and have maintained it. 

20For the past two and a half years you have had the support of your partner Lucinda who, fortunately, is not a drug user.  Lucinda remains supportive and was present in court at the time of your plea.  There is a young child from a previous relationship. 

21At the time of offending, you had been subject to reduced work hours and had no money for your accommodation. 

22I accept that the motivation for your robbery was not, as is often the case, for the purpose of obtaining money for drugs, but because you were suddenly faced with the prospect of having nowhere to live.  Prior to obtaining the accommodation at the Redan Apartments, you and your partner had been living in squats, shelters and generally “couch-surfing”.

23Nevertheless, the act of bailing up another citizen in the street and threatening them with a weapon for money cannot be condoned.  The offending is very serious.  Armed robbery is a cause of great terror, and the production of a weapon has the potential to have dangerous consequences, albeit originally unintended.  These acts against soft targets are to be strenuously discouraged.  Principles of general as well as specific deterrence are paramount.  There are institutions which attempt to accommodate the homeless, and this opportunity should have been explored. 

24In mitigation, I accept the submissions of your counsel including that:

·   you pleaded guilty and at the earliest stage;

·   you have in the past successfully completed the community-based order;

·   you have a long-standing drug addiction and, commendably, you have made genuine attempts to manage it;

·   you have maintained periods of regular employment involving physically hard work;

·   at the time of the offending you had no money and were facing immediate homelessness;

·   the decision to commit the offence was spontaneous and when you were quite desperate, not just for yourself, but also for your partner; and

·   you have the continuing support of your partner.

25Balancing all the circumstances, I have concluded that the public is best served by giving support and encouragement to your own attempts to manage your drug problem.  At the same time, I have to give appropriate expression to the principle of general deterrence, which means to make an example by this sentence in order to deter other like-minded individuals. 

26Ordinarily an offender in these circumstances should expect a sentence to an immediate term of imprisonment, and for a significant period.  I note, however, that you have already served a period of some four and a half months in remand custody for this offending and that period can be taken into consideration as time served on any sentence imposed.  That can also be taken into account in combination with a community correction order.

27You have been assessed as suitable for such an order.  I am also satisfied that your rehabilitation will be more likely achieved with the supervision you will have and the courses you can undertake whilst remaining in the community rather than if you were otherwise sentenced to a longer period in custody.  Furthermore, the unpaid community work component will give appropriate expression to principles of punishment and deterrence.

28Mr Bernath, would you please now stand? 

29On charge 1 of armed robbery, you are convicted and sentenced to six months’ imprisonment.  That sentence starts today. 

30On charge 1 of armed robbery, you are also ordered to serve a community correction order for two years. 

31As to the term of imprisonment, you have been in custody since 1 August 2014, that is for 188 days not including today.  However, you are sentenced to 45 days imprisonment on other matters on 9 October 2014, so the pre-sentence detention attributable to this offending is 143 days.

32Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 143 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

33Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is 3 years' imprisonment with a minimum period of 18 months be served before eligibility for parole.

34As to the community correction order, the order commences immediately upon your release from prison and ends two years from that date.  The Corrections centre you will attend is the Reservoir Community Correctional Service at 909 High Street, Reservoir and you must attend there within two clear working days after the completion of your imprisonment term. 

35All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:

·   you be under the supervision of a community corrections officer;

·   you perform 200 hours of unpaid community work; and

·   you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager. 

36I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you.  However, it is appropriate that I briefly summarise them here.  These are the mandatory terms that apply with any community correction order, and you would have been aware of them last time you served a similar order - the community-based order.

·   Firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force, and that is for a period of two years. 

·   You must report to and receive visits from a community corrections officer. 

·   You must report to the community corrections centre, that is, the Reservoir centre, within two clear working days of the order starting, and as I have already indicated, that order commences immediately upon your release from prison. 

·   You must notify a community corrections officer of any change of address or employment within two clear working days after the change. 

·   You must not leave Victoria without first getting permission to do so from a community corrections officer.

·   You must obey all lawful instructions from and directions of community corrections officers.  Such directions may be given either orally or in writing. 

37Do you understand and agree to those conditions, Mr Bernath.

38OFFENDER:  I do, Your Honour. 

39HIS HONOUR:  If you are ill, or if there are exceptional circumstances, the order may be suspended for a period of time.  And if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Reservoir Corrections Centre, and I recommend that you obtain legal advice if any of these things occur.  The central matter about that is to maintain communication.  If there are issues in your life that are causing you problems, do not ignore them and refuse to address them with the community service people.  Just communicate with them and they will see it through.  They can help you, and they are prepared to be flexible, you will find.  You have just got to deal with them. 

40However, I must warn you that if you breach any condition of this order, you will be brought back to court and that will be back before me.  One of the options open to me is to cancel the community correction order and re-sentence you on the original charge.  And I may also deal with you for the breach by sending you to prison for the breach for up to three months.

41Do you understand the consequences of breaching your community correction order?

42OFFENDER:  Yes, I do, Your Honour.

43HIS HONOUR:  All right, I will ask you to sign the community correction order shortly.  At the plea hearing the Crown sought orders for the disposal of the clothing worn during the offending and for the restitution of the torn $10 note, which you did not oppose, and I have also made those orders today.  Are there other orders from counsel?

44COUNSEL:  No, Your Honour.

45HIS HONOUR:  Thank you.  I'll have this provided to you now so that you can read it, make sure you understand it and sign it.

46MS HARTNETT:  I wonder if I might approach the dock briefly?

47HIS HONOUR:  Yes, of course.

48MS HARTNETT:  Thank you.  Thank you, sir.

49HIS HONOUR:  All right.  Thank you, Mr Bernath.  You may be seated for the moment, and you will be able to leave court - you will be returning with the officer, of course, shortly.  For a sentence of armed robbery, do not imagine this is a soft sentence.  You have got to do about six weeks further in custody, but you will find that period of two years for the community-based order is not going to be necessarily easy for you.  You have got to find work as well, so you will have to do this other work part-time and it will require commitment on your part, and it is for a period of two years. 

50You have also got a history in the past of having breakdowns every now and again and re-offending.  Not of the order of armed robbery, but it is disturbing that you do it to that stage.  The whole point about the balancing exercise that I have undertaken for this sentence is that I do perceive that if you get assistance, you can manage your problem and you can move out of it, and you will not re-offend.  But you will not do it unless you are prepared to accept some sort of assistance, because it is hard to do on your own and you have been trying, and I am giving real effect to the fact that you have seriously been trying.  But if you work with the people from the community corrections services, you will find that you will be able to better manage this.  I think you can do it and that is why I have made the order that I have, and direct that you serve the sentence in the manner that it has been articulated.  Do you understand that?  All right.  I will now leave the court while the matters for the appeal are ready, and I will be back in about ten minutes.  Thank you.

‑ ‑ ‑