Director of Public Prosecutions v Bhangu
[2024] VCC 767
•29 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00734
Indictment No. P10096389
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABHAY BHANGU |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 1 and 10 May 2024 | |
DATE OF SENTENCE: | 29 May 2024 | |
CASE MAY BE CITED AS: | DPP v Bhangu | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 767 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – two charges of armed robbery – one charge of theft – pleas of guilty
Legislation Cited: Crimes Act 1958; s74(1), s75A; Sentencing Act 1991; Migration Act 1958 (Cth), s501
Cases Cited:Worboyes v R [2021] VSCA 169; Biba v R [2022] VSCA 168; DPP v Stanley (pseudonym) [2024] VCC 228; DPP v Ater [2024] VSC 67; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269l Loftus v R [2019] VSCA 24; Walker v R; Dargan v R [2019] VSCA 137; Murrell v R; DPP v Murrell [2014] VSCA 337; DPP v Heyfron [2019] VSCA 130; Russo v R [2021] VSCA 244; DPP v Hodgson [2019] VSCA 49; DPP v Lo Bosco [2020] VCC 1386; DPP v Elidemir [2019] VCC 1508; DPP v McManus [2018] VCC 994; DPP v Teplin [2017] VCC 1423; DPP v Hanse [2015] VCC 1037; R v Bortoli [2006] VSCA 62; Walker v R; Dargan v R [2019] VSCA 137; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Coulson | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P Pathmaraj | Parminder Sandhu Solicitors |
HIS HONOUR:
1On 1 May 2024, you pleaded guilty to the following offences:
Charge 1 – that you, at Glen Waverley in Victoria on 23 December 2022, robbed Wenjin Bai of certain property, namely $130 cash, and at the time had with you and offensive weapon, namely a knife.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 2 – that you, at wheeler’s Hill in Victoria on 23 December 2022, robbed Zongyi Pan of certain property, namely $210 cash, and at the time had with you an offensive weapon, namely a knife.
Armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 3 – that you, at Chadstone in Victoria on 6 January 2023, stole a Dare Iced Coffee Espresso drink and two Village Mango Lassi Cultured Milk drinks belonging to Woolworths Group Limited (“Woolworths”).
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Circumstances of the offending
2Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening for Plea”, dated 18 September 2023.[1] The Court was informed by your counsel that there was no disagreement in relation to the matters set out in such document.
[1]Exhibit 1
3I will not refer to all of the matters set out in such document, but do refer to the important aspects pertaining to your offending. You were born in August 1996 and at the time of the offending you were aged twenty-six. You are now twenty-seven years of age.
4The first victim in relation to Charge 1 on the Indictment is Ms Wenjin Bai and the second victim in relation to Charge 2 on the Indictment is Ms Zongyi Pam. Both victims were aged thirty-two at the time of your offending and were not previously known to you.
Charge 1 – armed robbery
5At 1.00pm on 23 December 2022, Ms Bai parked her black 2016 Porsche Cayenne SUV in an open-air carpark in Glen Waverley and sat in the driver’s seat waiting for her father, Runchen Wang.
6A couple of minutes later you opened the rear right-hand door of Ms Bai’s vehicle and said “you parked over the line”, before sitting in the seat behind Ms Bai. You held a 30-centimetre knife over her left shoulder, 2 centimetres from her neck, and said “don’t get out of the car, don’t call anyone here, I need your money”.
7Ms Bai felt anxious and worried that you would use the knife to hurt her. She did not comply with your requests. She tried to talk normally to you in an attempt to calm you and offered you $20 from her wallet, to which you stated, “I saw more money”.
8Ms Bai then took a further $10 from her wallet and handed that to you, after which you “broke down in tears” and said you were jobless and “looking after [your] sister who is 17 and who “took drugs”. Ms Bai told you to go to the police and you replied, “I can’t do that or they are going to kill my sister”, causing Ms Bai to feel sorry for you and offered a prayer.
9At approximately 1.15pm, Ms Bai’s father, Mr Wang, returned to the vehicle and observed you seated inside, causing him to question who you were. Ms Bai gave you the remaining $100 from her wallet. You then told Ms Bai your name and telephone number, saying you would pay her back, after which Ms Bai wrote down those details on a piece of paper. You walked to a grey-coloured scooter before leaving.
10Ms Bai attended the Forest Hill Police Station at 3.30pm to report the incident.
Charge 2 – armed robbery
11At 5.23pm on the same day, that is, 23 December 2022, Ms Pan returned to her vehicle, an Infinite Q30, which was parked near a shopping-trolley return point at the carpark of Brandon Park Shopping Centre, Wheelers Hill. Ms Pan sat in the driver’s seat and began to use her phone.
12At approximately 5.26pm, you approached Ms Pan’s car and opened the rear driver’s side door before taking a seat in the car, at which time Ms Pan screamed and you said “calm down and shut up”. Ms Pan saw you holding a 30-centimetre knife in your left hand, which you pointed at her, saying “[d]on’t scream, calm down, don’t scream” multiple times. Ms Pan cried and begged you not to hurt her and told you that she had children.
13You told Ms Pan that your seventeen-year-old sister was very sick and she was the only family you had. You further told Ms Pan that you were committing this offence to keep your sister safe and needed $1,600 to pay rent.
14When Ms Pan stopped screaming, you placed the knife down on the seat and asked for money, with Ms Pan giving you $10 and then $5 in coins. You picked the knife back up and said, “I’m asking you very nicely. I’m asking you for my sister, this is not enough. I really need $1600”.
15Ms Pan started to cry again and asked you not to harm her, and also opened her purse, revealing that she had no money. On seeing her Commonwealth bankcard, you said “can you do cardless cash”. Initially Ms Pan tried to do this on her Commonwealth Bank phone application, but was unable to work out how and you then guided her through the phone application for cardless cash. Throughout this time, Ms Pan kept an eye on the knife and started looking around outside the car, causing you to notice and saying “don’t try to yell”.
16Ms Pan told you she would give you $200, after which you picked the knife up and said it was not enough, before telling her to show you how much money was in her account. Ms Pan showed you that she had $530 in her account, but told you that she needed the rest to survive until pay day. You informed her that you wanted $300 and showed Ms Pan the money you had collected throughout that day.
17Ms Pan began to cry again, telling you that you could only have $200, after which you asked her to go to the ATM with you. She declined and wrote the pin number in lipstick on a cardboard cupholder which was in the car, after which you told Ms Pan you wanted to pay her back, but did not provide her with any details.
18You then said:
“I didn’t meant to hurt you”;
“Indian people work hard, we don’t do this kind of stuff”;
“I know it is wrong”;
“I will be punished by god”;
“I will pay it back”
and that Ms Pan should not tell anyone.
19After about fourteen minutes from entering the car, you left and walked towards the Commonwealth Bank ATM and a short time later Ms Pan received a notification of a $200 withdrawal from her account.
20Ms Pan left the area, called her husband telling him what happened, and thereafter attended the Glen Waverly Police Station to report the incident.
Charge 3 – theft
21At 5.10pm on 6 January 2023, you entered the Woolworths Chadstone store and removed three flavoured milk drinks (a Dare Iced Coffee Espresso and two Village Mango Lassi Cultured Milks) from a fridge. You moved to an aisle concealing the two Mango Lassi drinks in your blue denim jacket and drank from the Dare Iced Coffee.
22You went to the self-serve checkout, placed the drink you had opened on the checkout machine and looked at your mobile phone. You did not scan the two drinks in your jacket and left without paying for any of them.
23A loss prevention officer approached you outside the store and requested the items back. You complied and provided your personal details and identification before leaving on a blue bike. The value of the milk drinks was $11.80.
Your arrest
24On 11 January 2023, police made attempts to locate you and were notified at 11.45pm that you were at an international departure point at Melbourne Airport and preparing to fly to Bangkok without a return ticket. Police attended Melbourne Airport at 2.05am and arrested you and transported you to Box Hill Police Station, before being transferred you to Oakleigh Police Station due to interpreter issues.
Record of interview
25You participated in a record of interview with the assistance of a Punjabi interpreter and told police at that time that:
· You did not go to the Glen Waverley or Brandon Park Shopping Centre and only attended there when you worked for Menulog.
· You did not commit the armed robbery offences.
· In relation to the theft, you were distracted, as you were on the phone talking about your sick mother and thought you had paid for the Dare Iced Coffee. You further stated that the two other milk drinks were from another store, but you were not sure which one.
Criminal history
26You have no prior convictions and no matters outstanding.
Pre-sentence detention
27You were remanded, on 12 January 2023, in custody until granted bail on 31 January 2023 and accordingly have served twenty days’ pre-sentence detention.
Chronology
28Counsel for the prosecution have set out a chronology which I refer to:
Date
Procedural event
12 January 2023
Charged
12 January 2023
Filing hearing
25 January 2023
Bail application – adjourned part heard
31 January 2023
Bail application – bail granted
31 March 2023
Defence offer to resolve
6 April 2023
Committal mention: adjourned to permit the Crown to consider the offer
5 May 2023
Offer accepted. Matter resolved
10 May 2023
Committal case conference: committed SHUB (plea guilty). Adjourned for sentence.
16 October 2023
Plea hearing.
Victim Impact Statements.
29The prosecution read and then tendered the following Victim Impact Statements:
(a) the Victim Impact Statement of Ms Pan, declared on 24 September 2023;[2]
(b) the Victim Impact Statement of Ms Bai, declared on 18 September 2023.[3]
[2]See Exhibit 3
[3]See Exhibit 2
30In her statement, Ms Pan initially notes your offending was a:
“… terrifying experience [that] has left an enduring mark on [her] well-being and has also deeply affected [her] family- two young children.”
31In particular, she states that she has had persistent sleep issues arising from the fear that you may find out where she lives. In this respect, your offending has significantly impacted on her sense of safety and security and she now struggles with fear and anxiety every time she enters her car or parks in public.
32The emotional strain has led her to suffer severe insomnia and disrupted her daily life. By this, she notes that the fear she experiences has affected her work and social life, making it challenging to concentrate and trust people in unfamiliar settings.
33In her Victim Impact Statement, Ms Bai describes that your offending has left her “shattered”. In particular, she describes how the event not only involved stealing her belongings, but also her sense of safety and security.
34She has experienced “enduring distress and anxiety”, casting a sense of fear over her suburban outlook. Her memory of the trauma is relentless, with the memory of that day replaying in her mind, robbing her of countless nights of sleep. Ms Bai notes that, although she has emerged from the incident unscathed, the threat of violence was very real. In particular, she considers that her “life hung in the balance that day” and this has left a lasting impact on her physical well-being as she grapples with the “what ifs” in her mind every day.
35Ms Bai also notes that your offending has “transformed [her] relationships and interactions with others. [She has] become wary and less trusting of people”.
Your personal circumstances and background
36Your counsel tendered the following documents:
(a) a document headed “Defence Submissions on Sentence, dated 30 April 2024;[4]
(b) report of the consultant forensic psychiatrist, Associate Professor Rajan Darjee (“the psychiatrist”), dated 14 April 2024,[5]
(c) a bundle of character references.[6]
[4]Exhibit “A”
[5]Exhibit “B”
[6]Exhibit “C”
37Partly based on some of the documents tendered on your behalf and partly based on various submissions made by your counsel, I note the following:
· You were born and brought up in India, with your father dying when you were nine years old. You have three older sisters, one of whom lives in India, and the other two are in Brisbane and Victoria. You described to the psychiatrist[7] that you are close to, and get on well with, your sisters. They have been very supportive of you and continue to provide support in the community.
[7]See the report of Associate Professor Darjee, dated 14 April 2024 – Exhibit “B”
· Apart from the death of your father, you describe to the psychiatrist a happy childhood, with no developmental, behavioural or emotional problems, and no experience of abuse or adversity. Again, there was no family history of mental health problems, offending or substance misuse.
· You described yourself to the psychiatrist as a “pampered only son and youngest brother”, who was sent to, what you describe as a “god (sic) school”. At school, you were not in any trouble, made friends and did well, and were involved in sports. After leaving school, you studied a Bachelor of Arts and undertook a computer course.
· You initially visited Australia, where your sisters already lived, in 2016, and in 2019 you moved to Australia and initially lived in Brisbane with one of your sisters. You undertook a commercial cookery course and worked in a carwash, but was also inspired to become a chef by your sister, as you were working in her restaurant, but also drove a truck.
· You informed the psychiatrist you had no problems in Brisbane and was never unemployed.
· The psychiatrist noted from mental health records that you were married in Brisbane, but the marriage broke down.
· You moved to Victoria to work at your other sister’s restaurant, which she had just purchased. While living in Victoria, you also worked as a Uber driver and a truck driver for Woolworths, and according to the psychiatrist, apparently had no work-related problems.
· You informed the psychiatrist that you have had three girlfriends, two in India and one in Australia, and that you had lived with your last girlfriend for a few months before the subject offences. In particular, that girlfriend had a house in Huntington and she sublet rooms in the house to three other women.
· You informed the psychiatrist that you lived with her at that house, shared things and were planning to get married. Just over three weeks prior to the subject offending, she went to India and you felt it would be inappropriate and awkward for you to stay living in her house with three females, so you commenced to live in your car.
· The psychiatrist obtained a history that you had no history of mental health issues before the weeks prior to the offences. However, after commencing living in your car, you commenced using methylamphetamine and cannabis and found yourself becoming “paranoid”. This manifested in you withdrawing, scared about what could happen to you and was concerned something was going on primarily at night. Such paranoia ceased after you were released on bail.
· You informed the psychiatrist, up until a month before the offences you had no history of abusing drugs and it was only after your girlfriend left for India that a friend suggested you should take methylamphetamine and cannabis – the former to stop you feeling sad and the latter to help you relax and sleep.
· You informed the psychiatrist that you took methylamphetamine every day and smoked cannabis on alternative days with the “ice”, making you feel very different. During this period you could not sleep and could not remember things and started to “live in [your] own world”.
· You informed the psychiatrist that your taking of drugs had been a “huge” mistake and had led to everything that had happened. You found it difficult to remember the specific details of the offences, but did not deny that you had committed them. You did say you were intoxicated with methamphetamine and cannabis when you committed the offences. You could not remember having a knife, but accepted the victims’ accounts of what you had done.
· You said that after you started taking drugs you had financial problems and had “lost everything”. You were spending about $200 each day. In particular, you said that when you took the drinks from the shop, you thought your card had been scanned, and offered to pay for it afterwards, but it was too late.
· Again, you informed the psychiatrist that you went to the airport to go to India, as your mother was unwell. Because you were so ashamed about what you had done, you could not tell your sisters initially, fearing that your life was “over”.
· You were remanded in prison for about three weeks at the beginning of 2023, but had been bailed for almost a year up until the time the psychiatrist assessed you. You informed the psychiatrist you had shared a cell with another prisoner for about two weeks, and during this time you had been beaten up by the prisoner.
· Your bail conditions include reporting to police twice a week, not taking drugs or alcohol and staying at your sister’s address. Accordingly, you currently live in Bacchus Marsh with your sister, brother-in-law and their two children.
· You commenced work as a part-time employee in the capacity of a kitchenhand at a hotel in September 2023.
The evidence of the psychiatrist
38Your solicitors arranged for you to be assessed by the psychiatrist. Such assessment took place on 12 January 2024 and the interview was conducted remotely using Zoom and was for about an hour and a half. The psychiatrist was assisted by a Punjabi interpreter.
39The psychiatrist obtained from you a family history, a personal history, a sexual and relationship history, a medical and psychiatric history, substance use history and a forensic history. The psychiatrist also had available to him Ballarat Mental Health records in relation to treatment you have had for psychological conditions from 2023.
40The psychiatrist noted that, at the interview you were polite and co-operative and engaged well. You spoke reasonable English, but the interpreter also translated. Your speech was fluent, logical and appropriate, you were not agitated, suspicious, anxious, hostile or depressed. In particular, you presented as feeling ashamed of what you had done and regretting the decisions you had made about drugs and money before the offending.
41You described to the psychiatrist experiencing some ideas of reference and persecution when you were taking substances, and in prison, but had not had such experiences since early 2023. In particular, the psychiatrist found no evidence of ongoing symptoms of mental illness, and you did not espouse a pro-criminal or antisocial attitude.
42I refer to the report of the psychiatrist, dated 14 April 2024,[8] and in particular to his opinion which covers diagnostic issues and current mental health, the relationship between any mental health condition and the subject offending, and the risk of further offending and prospects for rehabilitation. The psychiatrist states:
[8]See Exhibit “B”
“i. Diagnostic issues and current mental health
[You have] no previous history of mental health problems. In the context of [your] girlfriend going to India and [you] living in [your] car, and apparently being homeless and hanging around with the ‘wrong’ people, [you] took methamphetamine and cannabis for the first time, got into debt, things were unstable for [you], and [you] experienced some paranoid symptoms when intoxicated, especially at night. According to the mental health records (which [he] received after [he] saw [you] so was unable to discuss with [you]) [you] became somewhat depressed after the breakdown of [your] marriage in Brisbane. [You have] not taken these substances since [you were] arrested and [you] stated [you have] not felt paranoid since soon after [you were] released on bail. [You have] had contact with mental health services since release and [have] been prescribed anti-psychotic and anti-depressant medication. The mental health records note symptoms of depression, PTSD and atypical perceptual experiences in the months after [you] left prison. These had improved with treatment by the beginning of 2024 and plans were made for [you] to be discharged to [your] GP with a recommendation that [you] see a psychologist. [Your] PTSD symptoms related to [your] arrest and being assaulted in prison, so arose after [you] offended. Significant depression emerged in prison and in the first few months after [you were] released, in the context of the shame and guilt [you] felt due to [your] arrest, incarceration and being on bail. [Your] atypical perceptual experiences were probably due to a combination of PTSD and the effects of methamphetamine. [You] no longer had any of these symptoms when [he] saw [you], and the mental health records confirmed that [your] mental health was better and [you were] functioning well at the start of 2024.
In [his] view, the issues with [your] mental state that [you] described experiencing at the time of the offences were most likely due to the effects of methamphetamine and cannabis, in the context of being homeless, living in [your] car and having to look after [yourself]. Being arrested and imprisoned for the first time probably led to [you] developing PTSD and depression. Given [your] description of [your] experiences and their relation to [your] drug taking, it is unlikely that [you have] an underlying psychotic illness. The unusual perceptual experiences [you] described after being released from prison were probably due to a combination of the ongoing effects of [your] previous methamphetamine use and dissociation due to PTSD. Clearly to prevent [you] having similar experiences in the future [you need] to stay off drugs and to maintain the kind of stable lifestyle which [you have] had before and which [you have] at present. [You also need] to stay on [your] current medication, probably for at least a year. [You] would also benefit from seeing a psychologist regarding [your] traumatic experiences if [you are] able to access this. [You have] shown good engagement with mental health treatment since being released from prison.
ii. Relationship between mental health conditions/psychological functioning and current offences
[Your] offending does not appear to have been associated with, caused by, or influenced by a mental health condition. [Your] drug taking, in the context of [your] girlfriend going away (and/or [your] relationship with [your] wife breaking down) and [you] living in [your] car, led to financial problems, and in the context of these, and being under the influence of methamphetamine and cannabis, [you] committed the offences. But this was not part of a wider or persistent pattern of drug-related behaviour or having an antisocial or criminal lifestyle. A contributing factor may have been that for the first time in [your] life [you] did not have a female (mother, sister, wife or girlfriend) figure to ‘look after [you]’, given [your] description of being “pampered” and treated as the ‘baby’ of the family. [You seem] to understand the factors that led [you] down this path and to have a good understanding of how to not return to such behaviour. [Your] current circumstances seem entirely prosocial. [You were] not significantly depressed, [you] did not have PTSD and [you] had not had the experiences of seeing and speaking to the cockroach (and other strange perceptual experiences) until after [you were] arrested and taken into custody, so they were not associated with [your] offending.
iii. Risk of further offending and prospects for rehabilitation
a. Violence risk assessment
…
Overall, given [your] profile of risk factors, [you are] assessed as low case prioritisation, low risk of serious harm, and not at imminent risk of violence in the community. [You are] only likely to recidivate in the unlikely situation that [you return] to drug abuse. [Your] profile of risk factors is amongst the lowest [he has] come across in an individual charged with or convicted of violent offences. Such a profile indicates that [your] prospects for rehabilitation are good, and [you] will need little intervention, if any, to prevent further offending or violence.
…
iv. Impact of custody
There is a significant risk that if [you were] given a custodial sentence [you] would struggle to cope, [you] would become depressed and suicidal, [your] PTSD symptoms would be triggered and re-emerge, and [you] may return to substance use to cope, given the ubiquitous availability of substances in prison, and that could lead to [you] becoming somewhat paranoid and a re-emergence of [your] hallucinations. In addition, imprisonment would worsen [your] prospects for rehabilitation, given the prosocial lifestyle, non-drug taking, family support, employment, stability and good mental health [you have] achieved in the community.”
(Emphasis added.)
The various character references
43I refer to the following references:
(a) The reference of Ms Gurleen Bhangu, date 30 April 2024
Ms Bhangu describes herself as one of your three older sisters who now works as a chef at the VMCH Aged Care centre. Initially she came to Australia in 2014, and thereafter on a number of occasions on a tourist visa, before coming to Australia in 2019 on a student visa. In part, she states that she and her other sisters only became aware of your offending when you were “stopped by the police at the airport”, where you were intending to fly to India to look after your ill mother. She describes the revelation was “shocking to [your] family as [you] had never exhibited any prior drug-related behaviour”.
Ms Bhangu asserts that you have confided in her about the incident, expressing “overwhelming shame and guilt for [your] actions”. In particular, she reports that you regret, not only the consequences for the victims, but also the pain you have caused your family. Following your remand, she notes that you have abstained completely from drugs and alcohol and have shown genuine remorse for your actions, and accept full responsibility. In this respect, you have been actively participating in rehabilitation, receiving counselling from Dr Priya at the Ballarat Mental Health Services for the past eight to nine months, which has now concluded, and also attending for regular general practitioner consultations, where you have been prescribed antidepressant medication.
She notes that you are currently employed as a kitchenhand at The Royal Hotel in Bacchus Marsh and working diligently to rebuild your confidence and life under the family’s “supervision”. She notes, also, that you have enrolled in a bricklaying course and are optimistic about resuming your studies after resolving the pending legal matters. Your sister describes you as a kind-hearted individual, who actively participates in charity work at the Sikh temple. Although having little recollection of the incident due to your drug-induced state, your sister describes you as “genuinely remorseful” for the choices you made and recognise the need for positive change in your life.
Your sister also observes that the breakdown of your marriage deeply affected you, confounded by the betrayal you experienced from both your ex-wife and subsequent girlfriend. She opines that these experiences triggered a downward spiral, leading you towards negative influences and the wrong company of friends, and ultimately the “regrettable incident”.
Your sister also noted how you regret falling into drug use, resulting in associating with the “wrong crowd”. She believes that your actions were driven by the need for money to obtain more drugs and you were not in your usual state of mind;
(b) Reference of Ms Jasmine Bhangu, dated 30 April 2024
Ms Jasmine Bhangu describes herself as one of your older sisters and, in particular, that you have been living with her since 2019, and asserts that she knows you to be “kind, polite, and considerate”.
She notes that you deeply regret your actions and have been through a lot since your time in jail. Furthermore, she confirms that you have “sobered for a year”, have been receiving treatment from the Ballarat Mental Health Services and are taking prescribed medication for your mental well-being. She also confirms that you have deferred your studies to fucus on recovery and are working as a kitchenhand at The Royal Hotel in Bacchus Marsh.
Your sister also observed you to be “remorseful for the impact [your] actions have caused to the victims, and the strain [you have] caused for [the] family”;
(c) The reference from Mr David Joynt, dated 29 April 2024
Mr Joynt describes himself as the owner/director of The Royal Hotel, Bacchus Marsh. In particular, he states that you have been an employee at the hotel since September 2023 in the capacity as a kitchenhand and that you have discharged these duties with “diligence and respect”.
He describes how you have been working in an environment with both senior and junior staff members, male and female, and have an “exemplary record”.
He also describes you as “punctual, respectful, reliable and [have] demonstrated a fantastic temperament often in stressful situations”.
Mr Joynt ends his reference by stating that he has no hesitation in commending you on both your personal and professional conduct in the time that he has known you;
(d) The reference of Mr Palvinder Singh, dated 30 April 2024
The reference from Mr Singh states that he has known you since 2007, some years prior to marrying one of your sisters. Mr Singh presently works as a chef in an aged care facility and also owns his own restaurant called “New Golden Saffron”. In particular, he describes how you have been living with him and his wife (Ms Jasmine Bhangu).
Mr Singh notes that during your time with them you have shown yourself to be a kind and respectful individual. In the past, he also noted that you had a difficult period in your life when your marriage ended due to your wife’s infidelity, which led to a state of depression, and drugs led to the state of offending.
He states that, since this offending, his family and your sisters have been closely supervising you as you re-integrate into the community. He describes the subject offending to be “completely out of character” and those who know you well find it hard to believe that you could have been involved in such behaviour. Mr Singh also states that, through his dealings with you, he considers that you have felt immense guilt for the consequences of your actions and have expressed deep regret for such actions, and understand the seriousness of the situation.
He notes that you regularly attend the Sikh temple, both here in Australia and when you are in India, and volunteer your time there and seek solace in your faith. Mr Singh considers you to be “genuinely remorseful” for your actions and are determined not to repeat them;
(e) The reference of Ms Natalie Coyle, dated 28 April 2024
The reference from Ms Coyle describes herself as being currently employed as the head chef at The Royal Hotel, Bacchus Marsh. She first met you in August 2023 and from 2023, under new owners, you have been employed as a part-time employee in the kitchen team, and continue to work in this role.
She describes you as someone who is a “dedicated, driven and hardworking individual” and is a part of the kitchen team. Your employment as a kitchenhand involves dishwashing and cleaning, and being eager to learn, you easily and quickly transitioned into food preparation and now food service.
Ms Coyle notes that you are very respectful towards others in the workplace and a complete gentleman with female coworkers. Ms Coyle notes that she was “in complete shock and disbelief” when you advised her of your current charges and considers such actions are “completely out of character” for you. Ms Coyle notes that, because of your ongoing stress and strain as a result of the outstanding charges, she offered you a room in her home for personal clarity and space. Although very grateful, you declined due to your legal obligations to the court and wanted to ensure you followed the court’s rulings;
(f) The reference of Ms Dana Martinovich, dated 27 April 2024
Ms Martinovich describes you as her friend, as you both worked together in the kitchen at The Royal Hotel in Bacchus Marsh. In particular, she describes how you started work as a kitchenhand in 2023, but have advanced to working as a cook.
Ms Martinovich also states you have talked about your “past and past mistakes” at length and notes that you are doing everything to show everyone else that you have changed and grown out of the young immature person you used to be.
She describes you as a “very hard worker” and “always ready to lend a hand and learn new things even if they are outside your comfort zone”. She further describes that there is “nothing [you] wouldn’t do for anybody” and, indeed, you have assisted Ms Martinovich over the time you have been working there. She further notes that she has two teenage boys that adore you and are always asking when they can see you, as you all get along extremely well. She notes that she “completely trusts” you with her children, as she describes you as “very kind, gentle, considerate, respectful and honest”.
(g) The reference of Ms Sia’a Tuitaalili, undated
The reference from Ms Tuitaalili describes you as her “spouse”,[9] having met and known you since August 2023. She notes that she met you at The Royal Hotel, where you are both working, and became good friends, which led to a relationship and became “something more”. She noted that the offending affects you daily and she has been helping you both physically and mentally to get back onto your feet.
She describes how you have “massive regrets” about the subject offending and that you have also learnt from your past mistakes. She describes you as caring, compassionate and considerate and never back down from anything, and are always lending a helping hand.
Furthermore, she notes that you have never shown any aggression, and try to be happy and joyful, and are always willing to learn new things, and is very trustworthy and responsible.
[9]There is no other material to suggest you have remarried and I consider that Ms Tuitaalili has used the word “spouse” to mean essentially a girlfriend.
Matters in mitigation of your sentence
44Your counsel submitted that, given all the circumstances and bearing in mind the principle of parsimony, a term of imprisonment is not the only means by which deterrence can be given adequate weight in the “sentencing exercise”. It was submitted that all sentencing purposes in this matter can be appropriately balanced by the imposition of a “suitably tailored” Community Correction Order in relation to the two charges of armed robbery. Furthermore, given the low-level nature of the theft offence (Charge 3), the sentence of a “small fine” would be within range of that charge.
45In particular, your counsel referred to the following specific matters in mitigation of any sentence:
(a) Your plea of guilty
It was submitted that you pleaded guilty to the subject charges at the “earliest available opportunity”, being the first listing of the committal mention in this matter.
In particular, it was further submitted that such plea of guilty was indicated in March 2023, when courts were still experiencing delay in the resolution of committal hearings due to the backlog brought about by the COVID-19 pandemic. By pleading at the time you did, you were entitled to a further perceptible reduction on sentence as a result over and above the discount ordinarily given for a plea of guilty made at the earliest opportunity.[10]
[10]Reference was made to Biba v R [2022] VSCA 168 at paragraph [26]; DPP v Stanley (pseudonym) [2024] VCC 228 (per Judge Chambers); DPP v Ater [2024] VSC 67 (per Incerti J).
Counsel for the prosecution tendered a document headed “Prosecution Outline of Submissions on Sentence”, dated 30 April 2024. Such document was marked as exhibit 4. In that document, counsel for the prosecution states that the prosecution accepts that the plea of guilty occurred at the earliest stage and that a discount is warranted to reflect the utilitarian value of the plea. Furthermore, the prosecution also accepted that the plea was entered into while there was still a backlog of cases in the Magistrates’ and County Court as a result of the pandemic and would be entitled to a discount consistent with the principles enunciated in Worboyes v R.[11]
[11]Op cit
After a consideration of these matters, I am of the opinion that your plea of guilty was an early plea, which warrants a discount to reflect the utilitarian value of the plea – that is to say, the saving of time and resources by the matter not proceeding to a trial. Furthermore, given the timing of the plea, I consider that you are entitled to a discount on sentence consistent with the principles enunciated in Woryboyes v R;[12]
[12]Op cit
(b) your counsel submits, correctly, that you have no prior convictions for any type of offending, nor, indeed, any outstanding matters;
(c) The issue of remorse
Your counsel submits that you have demonstrated remorse in relation to your offending, as is recorded in the various references, and also what you have said to the psychiatrist, Associate Professor Darjee.
After a consideration of all of the evidence, I consider that you have expressed genuine remorse in relation to your offending, and, in particular, your comments as to what the effects of your offending were on the two victims;
(d) Your prospects of rehabilitation
Your counsel submits that you have taken “active and positive steps” towards your rehabilitation, including the following:
(i)by remaining abstinent from any form of drug or alcohol use since bail was granted on 31 January 2023;
(ii)by consistently engaging with mental health services at Ballarat Community Mental Health, from when your bail commenced;[13]
[13]Reference was made to the report of the psychiatrist, see exhibit “B”
(iii)by complying with your antipsychotic and antidepressant medication;[14]
[14]Again, reference was made to the report of the psychiatrist, see exhibit “B”
(iv)by securing stable employment at The Royal Hotel in Bacchus Marsh;
(v)by not engaging in any form of future criminal activity;
(vi)by reconnecting with your supportive family and focusing on a more prosocial group of friends.[15]
[15]Reference was again made to the report of the psychiatrist, see exhibit “B”
In particular, reference was made to the report of the psychiatrist, wherein it is record that:
“… By January 2024 there had been a marked improvement in [your] mental health with [you] no longer depressed or suicidal, less anxious, not experiencing any perceptual disturbance, less affected by post-traumatic symptoms, able to work and interacting well with [your] family. … .”[16]
[16]See report of the psychiatrist – exhibit “B” at page 4
Also, your counsel highlights that the psychiatrist administered the Historical Clinical Risk-20 Version 3 violence risk assessment instrument and concluded that, given the results of that test, you were assessed as :
“… low case prioritisation, low risk of serious harm and not at imminent risk of violence in the community. [You are] only likely to recidivate in the unlikely situation that [you return] to drug abuse. … .”[17]
[17]See report of the psychiatrist – exhibit “B” at page 10
Your counsel highlights the further comments of the psychiatrist, when he states:
“[Your] profile of risk factors is amongst the lowest I have come across in an individual charged with or convicted of violent offences. Such a profile indicates that [your] prospects for rehabilitation are good, and [you] will need little intervention, if any, to prevent further offending or violence.
…
Even without any formal intervention [your] reoffending risk is very low and [your] prospects for rehabilitation are very good.”[18]
[18]See report of the psychiatrist – exhibit “B” at page 10
Counsel for the prosecution, in her written submissions, stated that the prosecution accepts the opinion of the psychiatrist that you are a low risk of re-offending and that your prospects of rehabilitation are very good. Furthermore, the prosecution also accepts that you have taken active steps towards rehabilitation, have improved your mental health in the fifteen months since your release on bail.
After a consideration of all the material, I do consider that your prospects of rehabilitation are very good and that your chances of you re-offending is a “low risk”;
(e) Your mental health
Your counsel submitted that you were diagnosed with Post-Traumatic Stress Disorder (“PTSD”) following your release from custody in early 2023 and specially that such diagnosis arose by virtue of your time on remand.
Reference was made to the opinion of the psychiatrist when he states, in part, that:
“There is a significant risk that if [you were] given a custodial sentence [you] would struggle to cope, [you] would become depressed and suicidal, [your] PTSD symptoms would be triggered and re-emerge, and [you] may return to substance use to cope, given the ubiquitous availability of substances in prison, and that could lead to [you] becoming somewhat paranoid and a re-emergence of [your] hallucinations. … .”[19]
[19]See report of the psychiatrist – exhibit “B” at page 11
Your counsel submits that it would be “more likely than not” that your PTSD symptoms would be triggered by any future imprisonment, with the probability that the so-called Limbs 5 and 6 of the principles enunciated in R v Verdins; R v Buckley; R v Vo[20] are enlivened.
In her written submissions, counsel for the prosecution stated that the prosecution accepted, as a result of your mental condition at the time of sentencing and in particular the risk of such symptoms being “triggered” on re-entering custody, does give rise to the prospect of Limbs 5 and 6 having some application in the sentencing exercise.
Although the psychiatrist does not expressly state that any incarceration would be more difficult for you because of your potential mental state compared to other prisoners, I do accept that, based on the opinion of the psychiatrist, it is probable that Limbs 5 and 6 of Verdins would be enlivened and accordingly you are entitled to have this taken into account as a mitigatory factor;
(f) Immigration status
Your counsel submitted that you are currently residing in Australia on a student visa and are an Indian citizen. He notes that, should the Court impose a sentence of imprisonment of twelve months or more, your visa would be cancelled and you would be facing the real prospect of deportation.[21]
Reference was made to Loftus v R [2019] VSCA 24, wherein Whelan AP and Niall JA, observed that the prospect of deportation is relevant in a twofold manner of sentencing:
“First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.”[22]
(Footnote omitted.)
[20](2007) 16 VR 269 at 32
[21]Reference was made to the Migration Act 1958 (Cth), s501.
[22]See Loftus v R (op cit) at paragraph [79]
Your counsel further submitted that, although you only immigrated to Australia in 2019, you have a strong desire to find a pathway toward permanent residency here, in circumstances where two of your sisters reside here with their families.
Clearly enough, if you were sentenced to twelve months or more imprisonment, your visa would be revoked – although there is seemingly executive power to overturn such revocation. Of course, the Court would have no control over such a course of action.
On the evidence before the Court, I do accept that, if you were incarcerated for twelve months or more imprisonment would be more onerous, as you would face the prospect of deportation and, furthermore, if deportation occurred, this would constitute an additional punishment, bearing in mind that your two sisters would continue to live in Australia.
46In relation to the issue of the “objective gravity” of the two offences involving armed robbery (Charge 1 and 2 on the Indictment), your counsel submitted that such offending constitutes “inherently serious conduct”. However, in assessing the objective gravity of these particular instances of armed robbery, it was submitted that the following six features are pertinent:
(a) the offending did not involve a great amount of planning and the offences were thoroughly unsophisticated in their execution.[23] You did not attempt to disguise yourself in any way. You were not wearing a face covering, nor did you use any gloves in an effort to mask your involvement. To the contrary, so it was submitted, you effectively revealed your identity when you disclosed your name and phone number to Ms Bai;
(b) secondly, although you were armed with a knife, you did not use the weapon to cause any physical injuries to the victims;[24]
(c) thirdly, the offending did not occur at nighttime;[25]
(d) fourthly, the offending did not occur in company;[26]
(e) fifthly, you were not subject to any court orders at the time;
(f) sixthly, the value of the items stolen was comparatively low.
[23]Reference was made to the Victorian Court of Appeal decision of Walker v R; Dargan v R [2019] VSCA 137 at paragraph [63].
[24]Reference was made to Murrell v R; DPP v Murrell [2014] VSCA 337 at paragraph [64] (per Priest JA, with whom Maxwell P and Redlich JA agreed); DPP v Heyfron [2019] VSCA 130 at paragraph [48] (per Priest, Kaye and T Forrest JJA).
[25]Reference was made to Russo v R [2021] VSCA 244 at paragraph [48] (per Emerton JA, with whom Priest JA agreed).
[26]Reference was made to DPP v Hodgson [2019] VSCA 49 at paragraph [67] (Per Kaye, Niall and Weinberg JJA).
47In such circumstances, it was submitted that your decision “to subject two different unsuspecting members of the public to armed demands for money” must be “condoned”, but the features of this case, described above, are removed from the more typical cases of armed robbery which come before this court.
48In relation to the charge of theft, it was submitted that such offence falls at the lowest end of the range of seriousness – given that the items stolen were of almost negligible value – being flavoured milk drinks stolen when you were experiencing homelessness.
49Your counsel referred to a number of what were referred to as “comparable cases” involving individuals who have committed armed robberies of a “somewhat similar nature to the present case”. Your counsel, although accepting, appropriately in my view, that such cases have limited value as each turn on their own facts, submitted that such cases are illustrative of the fact that non-custodial sentences can be imposed for this type of offending (that is, the armed robberies).[27]
[27]Reference was made to the following cases: DPP v Lo Bosco [2020] VCC 1386 (per Judge Gucciardo); DPP v Elidemir [2019] VCC 1508 (per Judge Gaynor); DPP v McManus [2018] VCC 994 (per Judge Wraight); DPP v Teplin [2017] VCC 1423 (per Judge Montgomery); DPP v Hanse [2015] VCC 1037 (per Judge Dean)
50Ultimately, it was submitted that you commenced using drugs less than a month before the offending and such use had a devastating effect, causing a then twenty-six-year-old man, who until that time had led a law-abiding life in this country, to embark upon two armed robberies. Notwithstanding the inherent seriousness of this kind of offending, it was submitted that you have actively taken steps towards your own rehabilitation in the intervening period.
51In particular, it was submitted that you underwent a very salutary experience in custody, after which you commenced your pathway towards rehabilitation by offering to plead guilty at the earliest stage in these proceedings. Since that time, you have remained abstinent from drugs for a considerable period and have worked on your mental health. In particular, you have reconnected with your close-knit family and have been gainfully employed.
52Given the foregoing and the need to provide you with a perceptible discount on sentencing, all sentencing purposes can be achieved, so it was submitted, through the imposition of a sufficiently-punitive Community Correction Order in relation to the armed robbery charges, together with a small fine for the charge of theft, being Charge 3 on the Indictment.
The position of the Prosecution
53Counsel for the prosecution submitted, in relation to the issue of the “objective gravity” of the armed robbery offences (that is Charges 1 and 2 on the Indictment), that such offending is a “very serious offence”, made plain by the maximum penalty of twenty-five years’ imprisonment. It was further submitted that the robberies occurred on the same day – 23 December 2022 – around four hours apart at two different locations. They involve two separate victims, both of whom were thirty-two-year-old females who were sitting alone in their car. They were isolated in an unprotected environment, making them vulnerable. You opened the car door and sat behind each of the victims before producing a knife and making a demand for money.
54You were in Ms Pan’s car for some fifteen minutes, which was said to be “significant”. It was submitted that the total proceeds of the offending were $340 in cash, which was accepted to be comparatively low. Furthermore, it was accepted that there was very limited evidence of planning beyond the fact that you were armed with a knife and the offending was generally unsophisticated in nature.
55Ultimately, it was submitted the offences are not low level, but can be accurately described as mid-range. In particular, reference was made to the Victim Impact Statements of Ms Bai and Ms Pan, and that it was clear from these statements that the crimes committed against them have had significant consequences for both victims.
56It was the ultimate submission of the prosecution that the appropriate disposition is one of a term of imprisonment with a head sentence and a non-parole period in order to reflect the principles of general deterrence, denunciation and community protection.
57Again, counsel for the prosecution similarly referred to a number of sentences involving armed robbery, with the caveat, of course, that each case very much turns on its own facts.
Other matters
58At the conclusion of the plea on 1 May 2024, the Court ordered that you be assessed to determine your suitability for a Community Correction Order. It was made plain to the parties that I would not necessarily accept that a Community Correction was appropriate, but considered that I have the assessment available when I come to consider an appropriate sentence.
59Such an assessment was made on 1 May 2024, by a Community Corrections officer, Ms Havovi Panthaki. Ms Panthaki prepared a report, dated 1 May 2024, in which she assessed you to be suitable for a Community Correction Order. I directed that such document be tendered and will have it marked as exhibit “D”.
60In her report, Ms Panthaki noted that you were assessed as being “a medium risk of re-offending” according to the Level of Risk Assessment Tool. Furthermore, it was noted that you have had no prior involvement with Community Correctional Services, and, although you needed the assistance of an interpreter, the Corrections officer considered that you engaged politely throughout the assessment, answering all questions, and ultimately determined there were no barriers for you to comply with a Community Correction Order if it was so made.
61In particular, when queried about the subject offending – that is the armed robberies – you apparently informed the Corrections officer that:
“… the offending occurred because [your] girlfriend had moved back to India [you were] ‘missing her lots’ and a friend ‘told [you] to take drugs to help [you] focus on work.’ [You] reported that [you were] drug affected during the offending and reported that [you] had a knife in [your] possession because [you] had been sleeping in [your] car. [You] reflected that [your] offending would have traumatised the victims, reflecting that if something similar had happened to [your] sisters, the mental stress would have taken a toll.”
62You also informed the officer that you commenced using methylamphetamine and cannabis daily as a result of the drugs being introduced to you by your friends. In particular, you informed the officer that you were using one point of methylamphetamine every two days and that you would smoke cannabis each evening before going to bed. Furthermore, you informed the officer that you had ceased drug use in December 2022 and have remained abstinent from such drugs since then.
63Part of that assessment involved an assessment of you by a registered nurse pursuant to the Mental Health Advice and Response Service. That assessment also occurred on 1 May 2024, resulting in a report of the same date. Similarly, I will have that report tendered and marked as exhibit “E”. Ultimately, the registered nurse, Mr Gregory Lane, opined that you have a mild mental health problem and it was recommended that ongoing assessment and treatment of your mental health be made a condition of any Community Correction Order in order to promote wellbeing and reduce the likelihood of re-offending.
64Also, at the end of the plea on 1 May 2024, I directed that the medical material which was available to those acting for you and which was made available to the psychiatrist, be made available to both the Court and to those acting for the prosecution. The matter was adjourned to 10 May 2024 for any further submissions to be made in relation to the report from Community Corrections and/or indeed the medical material (which was not tendered).
65On 10 May 2024, counsel for the prosecution submitted that she had no submissions in relation to the assessment for a Community Correction Order and furthermore only made comment that the further medical material clearly demonstrated that you had attended treatment after being released on bail, which continued over a period of time, resulting in significant improvement in your mental condition.
66Counsel for the prosecution re-affirmed her instructions that, based on all of the material before the Court and given the serious nature of the offending, you should be sentenced to a period of imprisonment with a non-parole period.
Conclusion
67You have pleaded guilty to two charges of armed robbery and one charge of theft.
68The offence of armed robbery is a serious offence, as it made plain by such offence attracting a maximum sentence of twenty-five years’ imprisonment. Furthermore, such an offence is inherently serious given that an element of such offending is that the perpetrator be “armed”. In this respect, I refer to the decision of R v Bortoli,[28] a decision of the Victorian Court of Appeal, wherein Redlich AJA, who gave the decision of the court (Maxwell P and Buchanan JA agreeing), stated, in part:
“Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. … .”[29]
[28](2006) VSCA 62
[29](Ibid) at paragraph [23]
69You committed two armed robberies; the first on 23 December 2022 at approximately 1.00pm in an openair carpark in Glen Waverley (Charge 1 on the Indictment) and later on 23 December 2022 at approximately 5.23pm in a carpark at the Brandon Park Shopping Centre (Charge 2 on the Indictment).
70The first armed robbery involved Ms Bai, who was thirty-two years of age at the time and sitting in her parked vehicle waiting for her father to arrive.
71You entered such vehicle through the rear right-hand side door and sat behind Ms Bai. At that time, you held a 30-centimetre knife over her left shoulder 2 centimetres from her neck, and told her “don’t get out of the car, don’t call anyone here, I need your money”.
72Although anxious and worried, Ms Bai tried to talk normally to you in an attempt to calm you and offered you $20 from her wallet, which you took and then said to her “I saw more money”, causing Ms Bai to take a further $10 from her wallet and handing it to you.
73Curiously, there was then a conversation between you and Ms Bai, in which you broke down in tears and said you were “jobless” and looking after your sister who was seventeen and took drugs. Ms Bail told you to go to the police, and you said to her “I can’t do that or they are going to kill my sister”, causing Ms Bai to feel sorry for you and offered a prayer.
74At approximately 1.15pm, the father of Ms Bai returned to the vehicle and observed you, and questioned who you were. Ms Bai gave you the remaining $100 out of her wallet and again, curiously, you told Ms Bai your name and phone number, saying that you would pay her back. You walked to a grey-coloured scooter before leaving.
75The second armed robbery that day involved Ms Pan, who was also thirty-two years of age at the time of your offending. She returned to her vehicle, which was parked near a shopping trolley return point in the carpark, sat in the driver’s seat and began to use her phone.
76You approached her car and again opened the rear driver’s-side door before taking a seat in the car behind Ms Pan, causing her to scream, and you stating to her “calm down and shut up” in an Indian accent.
77Again, you were holding a 30-centimetre knife in your left hand, which you pointed at Ms Pan, telling her “[d]on’t scream, calm down, don’t scream” multiple times.
78Ms Pan cried and begged you not to hurt her, telling you that she had children. You told Ms Pan that your seventeen-year-old sister was very sick and that she was the only family you had. In particular, you told Ms Pan that you were trying to keep your sister safe and needed $1,600 to pay rent. When Ms Pan stopped screaming, you placed the knife down on the seat and asked for money, after which Ms Pan gave you $10 and then $5 in coin, after which you picked the knife back up and said, “I’m asking you very nicely. I’m asking you for my sister, this is not enough. I really need $1600”.
79Again, Ms Pan started to cry and asked you not to harm her. She opened her purse, showing that she had no money, but you saw her Commonwealth bank card and said “can you do cardless cash”. Ms Pan tried to do this on her Commonwealth bank phone application, but was unable to work out how, causing you to then guide her through the phone application for cardless cash.
80Throughout this activity, Ms Pan kept an eye on the knife and started looking around outside the car, causing you to say “don’t try to yell”.
81Ms Pan told you that she could give you $200, after which you picked the knife up and said it was not enough, telling her to show how much money was in her account. Ms Pan showed you that she had $530 in her account, but she needed the rest to survive until pay day, causing you to say you wanted $300. Ms Pan began to cry again, telling you that you could only have $200, after which you asked her to go to the ATM with you. She declined, and wrote the pin down in lipstick on a cardboard cup holder that was in the car.
82You informed Ms Pan that you wanted to pay her back, but did not provide any details and in particular said:
“I didn’t mean to hurt you”
“Indian people work hard, we don’t do this kind of stuff’
“I know it is wrong”
“I will be punished by god”
“I will pay it back”
and that you should not tell anyone.
83Approximately fifteen minutes after entering her car you left and walked towards the Commonwealth Bank ATM and a short time later Ms Pan received a notification for a $200 withdrawal from her account.
84Both your counsel and counsel for the prosecution put various submissions as to the objective gravity of such offending. In particular, your counsel submitted the following features:
(a) the armed robbery offending did not involve a great amount of planning, the offences were thoroughly unsophisticated in their execution, you did not attempt to disguise yourself in any way or use any gloves in an effort to mask your involvement. To the contrary, you revealed your identity when you disclosed your name and telephone number to Ms Bai;[30]
(b) although armed with a knife, you did not use the weapon to cause any physical injury to the victims;[31]
(c) the offending did not occur at nighttime,[32] but rather during the day, when there was a risk of detention;
(d) the offending did not occur in company;[33]
(e) the value of the items stolen was comparatively low.
[30]Reference was made to Walker v R; Dargan v R [2019] VSCA 137 at paragraph [63]
[31]Reference was made to Murrell v R; DPP v Murrell (op cit) at paragraph [64] (per Priest JA, with whom Maxwell P and Redlich JA agreed); DPP v Heyfron (op cit) at paragraph [48] (per Priest and J Forrest JJA)
[32]Reference was made to Russo v R (op cit) at paragraph [48] (per Emerton JA, with whom Priest JA agreed)
[33]DPP v Hodgson (op cit) at paragraph [67] (per Kaye, Niall and Weinberg JJA)
85Counsel for the prosecution noted that the two robberies occurred on the one day, approximately four hours apart at two separate locations. The two victims, who were both thirty-two-year-old females, were sitting alone in their car, isolated in an unprotected environment, making them vulnerable. You spent about fifteen minutes in each of the vehicles, much of that time holding a knife in close proximity to the victims.
86Furthermore, counsel for the prosecution submitted, rightly in my view, that the Victim Impact Statements from Ms Bai and Ms Pan make it clear that the crimes committed against them have had significant consequences for both victims. In one way or another, each of the victims stated they were terrified at the time, with you sitting there holding a knife, and this has impacted on them both in recalling the event and avoiding various places. It was submitted by counsel for the prosecution that although there was little evidence of planning by you in relation to the robbery, that you made no attempt to disguise yourself, that the amount of money was relatively small, and that such offending could be overall be described as “generally unsophisticated in nature”, it was not low-level offending, but could accurately be described as “mid-range” objective gravity.
87Although it is an element of the offence that you were armed, it is appropriate to consider the nature of the weapon and its potential to cause harm and the manner it was used in committing the offence. I consider that it must have been terrifying for each of the victims to have a bread knife several centimetres away from their throats during most of the time you were in the rear of their respective vehicles. In such circumstances, I do accept the submission of the prosecution that this offending, although not the most serious type of armed robbery, can be accurately described as “mid-range” objective gravity.
88If I may quickly refer to the third offence on the Indictment, that is, the offence of theft. The circumstances of that matter was that such offence occurred at approximately 5.00pm on 6 January 2023, when you attended a Woolworths store in Chadstone and removed three flavoured milk drinks from a fridge. You moved to an aisle concealing two mango lassi drinks in a blue denim jacket and drank an iced coffee drink. You went through the self-serve checkout, placed the drink that you had open (that is, the coffee) on the checkout machine and looked at your mobile phone. You did not scan the two drinks in your jacket and left without paying for any of them.
89A loss prevention officer approached you outside the store and requested the items back. You complied and provided your details and identification before leaving on a blue bike. The value of the milk drinks was $11.80.
90You were ultimately apprehended at Tullamarine international airport, where you were preparing to fly to Bangkok without a return ticket. Police attended the airport at about 2.05am and arrested you, and you were transferred to the Box Hill Police Station before being transferred to the Oakleigh Police Station. I do accept, consistent with the evidence of your sisters, that it was your intention to travel to India to attend on your very ill mother at that time. There is no suggestion this was an issue of flight from the circumstances of your offending.
91Unfortunately, you did not help yourself when you participated in the record of interview (with the assistance of a Punjabi interpreter). You informed the police that you did not commit the armed robbery offences and in relation to the theft, you maintained you were distracted on the phone talking to your sick mother and thought you had paid for the iced coffee. Furthermore, you stated that the two other milk drinks were from another store, but was not sure which one.
92In relation to the theft, both your counsel and counsel for the prosecution accepted that such theft was a low-level example of such an offence and it would be appropriate to convict you and fine you for such offence. I intend to follow such course in ordering the sentences in this matter.
93In determining an appropriate sentence in relation, in particular, to the armed robbery offending, it is particularly important in the circumstances of this matter to understand your circumstances leading up to the offending and, indeed, the events occurring after your arrest on 12 January 2023. On that date, you were remanded in custody until being granted bail on 31 January 2023 and accordingly have served twenty days’ pre-sentence detention.
94You are presently twenty-seven years of age and was aged twenty-six at the time of the subject offending. You were born in India and are one of four siblings with you being the youngest, with three older sisters. One of those sisters continues to live in India, but your two other sisters live in Australia, one in Brisbane and one in Victoria, and at all material times you have been close to, and get on well with, the sisters residing in Australia.
95You had a happy childhood in India, with no developmental, behavioural or emotional problems and no experience of abuse or adversity. In particular, there was no family history of mental health problems, offending or substance misuse. Your described yourself to the psychiatrist who examined you as a “pampered only son and youngest brother”, who attended a good school in India, where you made friends, did well in school and was involved in sports.
96After leaving school, you studied a Bachelor of Arts and undertook a computer course, over which time you also visited Australia on occasion to visit two of your sisters in Australia.
97You came to Australia in 2019 and initially lived in Brisbane with one of your sisters and undertook a commercial cookery course, and also worked in a carwash. You were inspired to become a chef by your sister, as she was working in her restaurant, but you also drove a truck. In particular, you had no problems whatsoever in Brisbane and was never unemployed.
98Later you moved to Victoria to work at your other sister’s restaurant, which she had just purchased. While living in Victoria, you have also worked as an Uber driver and a truck driver for Woolworths and, again, you informed the psychiatrist that there had been no work-related problems.
99In particular, you had a girlfriend who you were living with for a few months prior to the subject offending in a house in Huntington, where she sublet rooms in the house to three other women.
100You were planning to get married to that woman and approximately three to four weeks prior to the subject offending she went to India, after which you felt it would be inappropriate and awkward to stay living in the house with three other females.
101Prior to this offending, you had had no history of mental health issues, nor indeed any history of drug involvement or any antisocial activities. However, after leaving the house in Huntington, you commenced living in your car and was introduced by friends to methylamphetamine and cannabis for the first time in your life. You described to the psychiatrist how this made you feel “paranoid”, manifesting in you withdrawing, becoming scared as to what could happen to you and was concerned something was going on primarily at night. Your friends advised you to commence using methylamphetamine and cannabis because the use of such drugs would stop you feeling sad and also help you relax and sleep.
102I accept that leading up to the subject offending you were taking methylamphetamine every day and smoked cannabis on alternative days, with the “ice” making you feel very different. During this period, you could not sleep and could not remember things, and started to “live in [your] own world”.
103You were drug affected at the time of the subject offending. In particular, I also accept that you have found it difficult to remember the specific details of the offences, but do not deny that you committed them. In particular, you do not remember having a knife, but accepted the victims’ accounts of what you had done.
104At the time of the subject offending, I accept you had financial problems and had lost everything – particularly the breakdown of your relationship – all of which caused you to be spending large amounts of money on drugs.
105I consider it also important to appreciate that up to approximately three to four weeks prior to the subject offending, not only had you never used drugs or shown any antisocial tendencies, but you also had been in full-time employment with no problems.
106In this respect, I accept that, as described by some of your referees, such offending was “completely out of character”.
107After your arrest, you were remanded for approximately three weeks, during which time you were beaten up by another prisoner and in particular found your experience of jail a very sobering experience. It is, in my view, also important what has occurred since you being placed on bail on 31 January 2023. Bail conditions have included reporting to police twice a week, not taking drugs or alcohol and being required to live with your sister, brother-in-law and their two children at Bacchus Marsh.[34]
[34]That sister and brother-in-law being, respectively, Ms Jasmine Bhangu and Mr Palvinder Singh.
108After being bailed, you commenced treatment for persisting mental conditions and assiduously attended as and when required. Over time, your sister and brother-in-law noticed improvement and indeed your mental state, as described by the psychiatrist, has substantially improved and stabilised.
109I accept you have been assiduous in your rehabilitation and over the period of time since being bailed you have complied with your bail conditions, and in particular have not been involved with drugs since then.
110It is also to be noted that, in about September 2023, you commenced part-time work at the Bacchus Marsh hotel, initially as a bottle washer, but now have been effectively “promoted” to some cooking duties and you intend to develop your cooking, as you enjoy this work very much.
111You obviously continue to live with your sister and brother-in-law and they are both very supportive of you, as is your sister based in Queensland.
112As I have recorded, both your counsel and counsel for the prosecution, submitted that in determining an appropriate sentence in relation to the armed robberies, the issues of general deterrence, denunciation and protection of the community were important considerations.
113Again, as I have already recorded, your counsel submitted that an appropriate deposition in relation to the armed robbery offences would be the ordering of a Community Correction Order, which he submitted could satisfy all the sentencing requirements in relation to your offending – that is to say, a punitive element by ordering unpaid work, together with therapeutic conditions which would aid your rehabilitation. Reference was made to the well-known case of Boulton v R; Clements v R; Fitzgerald v R.[35]
[35](2014) 46 VR 309
114On the other hand, counsel for the prosecution submitted that, even allowing for the various mitigating factors which were accepted by the prosecution, only a sentence of immediate imprisonment with a non-parole period would be appropriate in all the circumstances.
115After a consideration of all the material, I have formed the view that, given the nature and objective seriousness of the armed robbery offending (and in particular the brandishing of the knife), that only an immediate period of imprisonment is appropriate. I intend to order that an aggregate sentence of imprisonment in relation to Charges 1 and 2 on the Indictment. Although I accept that an immediate period of imprisonment has the potential to limit your ongoing steps towards rehabilitation, and also there is a risk, according to the psychiatrist, that if you are ordered a custodial sentence you will struggle coping, could become depressed and suicidal and your earlier post-traumatic stress disorder symptoms could return. Furthermore, the psychiatrist also opined that there was the risk that you could return to drug use in such circumstances. However, it must be borne in mind that general deterrence is extremely important in relation to such offences as armed robbery.
116However, for the reasons that I set out hereunder, I consider that a combined sentence is appropriate – by that, I mean a period of immediate imprisonment followed by a Community Correction Order, where I would also order a punitive condition, but also order therapeutic conditions – particularly to support you in your ongoing rehabilitation and your abstinence from drug use.
117I have reached this conclusion for the following reasons:
(a) I consider that your various expressions of remorse to both members of your family, and some extent to your work mates, are both genuine and profoundly felt. In particular, I accept that, consistent with your comments made to your sister, Ms Jasmine Bhangu, you have insight into the terror that you caused the two victims to suffer as a result of your offending;
(b) I also consider that your rehabilitation to date has been very good. In particular, I refer to the treatment you have undertaken since being bailed, which has led you to have a good mental state and the cessation of drug use over the period since being released;
(c) You have strong support from your family members, and in particular your two sisters, one of whom you are living with, and her family;
(d) It is relatively rare to have such strong references from those associated with your current employment at The Royal Hotel, Bacchus Marsh. References from this source – the owner/director of the hotel, Mr David Joynt; the head chef at the hotel, Ms Natalie Cayle; and a worker at the hotel, Ms Dana Martinovich – all of them speak highly of your character, work ethic and your desire to succeed;
(e) I also take account the expert opinion of the psychiatrist, who opines in relation to your chances of re-offending, wherein he states:
“Overall, given his profile of risk factors, he is assessed as low case prioritisation, low risk of serious harm, and not at imminent risk of violence in the community. He is only likely to recidivate in the unlikely situation that he returns to drug abuse. His profile of risk factors is amongst the lowest I have come across in an individual charged with or convicted of violent offences. Such a profile indicates that his prospects for rehabilitation are good, and he will need little intervention, if any, to prevent further offending or violence.”[36]
[36]See exhibit “B” at page 10 of the psychiatrist’s report.
118I accept such opinion.
119Please be upstanding:
(a) in relation to Charges 1 and 2 on the Indictment, you are convicted and sentenced to an aggregate period of imprisonment of nine months;
(b) in relation to Charge 3 on the Indictment, you are convicted and sentenced to a fine of $150;
(c) I declare that you have served twenty day’s pre-sentence detention and order that be reckoned as a period of imprisonment already served under the sentence and which is to be deducted administratively;
(d) In relation to Charges 1 and 2 on the Indictment, I further sentence you to a Community Correction Order to commence two days after your release from prison and to continue for a period of fifteen months.
(e) Beyond the mandatory conditions, I order the following conditions:
(i)pursuant to s48C of the Sentencing Act 1991, you are to perform one hundred hours of unpaid community work during the course of the Order;
(ii)pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment for drug abuse or dependency;
(iii)pursuant to s48D(3)(c) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment, which may include psychological, psychiatric, or treatment in a hospital or residential facility;
(iv)pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary;
(v)pursuant to s48CA of the Sentencing Act 1991, I direct that twenty hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of an unpaid community work condition;
(f) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have ordered a period of imprisonment of two-and-a-half years, with a non-parole period of twenty months.
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