Director of Public Prosecutions v Bird

[2018] VCC 431

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 17-02554

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES THOMAS BIRD

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	9 April 2018
DATE OF SENTENCE:	9 April 2018
CASE MAY BE CITED AS:	DPP v Bird
MEDIUM NEUTRAL CITATION:	[2018] VCC 431

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Plea of guilty to one charge of attempted armed robbery – soft target – use of toy gun – chased by store proprietor – early plea – no priors – accused aged 18 at time of offending and sentence – employed as apprentice tradesman – stable life – studying to complete Year 12 – very good prospects for rehabilitation.            

Cases Cited:DPP v Candaza & Ors [20013] VSCA 91 

Sentence: 2 year CCO without conviction    

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	OPP
For the Accused	Mr M. Habib	Doherty Legal

HER HONOUR:

1Mr Bird, you can stay seated for the moment.  I will ask you to stand a little later.

2James Thomas Bird, you have pleaded guilty to one charge of attempted armed robbery.  You appear in court today as a young man, aged 18, who has never offended before and with a background and character that does not suggest any such predisposition.

3Unfortunately, you had been drinking alcohol on the day in question and this may have affected your decision to do something quite outside your usual behaviour. 

4On 19 September last year you went to a store in Bendigo where the proprietor was working alone.  You were wearing black clothing with the hood of the jacket pulled over your head, and in your pocket you had a toy gun which you had bought for the purposes of “fooling around” at the end of Year 12.  The toy was made of coloured plastic and the packaging stated that it was suitable for children aged eight and older.

5You approached the counter with the toy gun pushed forward in your pocket, and placing your backpack on the counter, you asked the proprietor to put all of the money in it or you would shoot him.  The proprietor was unsure whether you had a gun so he walked around the counter towards you, when you again pointed the toy gun at him, while it still remained in your pocket.

6Again you said, "I will shoot you".  The proprietor became scared and returned to the other side of the counter.  You then told him again, aggressively, to put the money in the bag, and as the proprietor looked more closely, he saw the orange colour of the toy gun which appeared to him to be plastic. 

7He decided to confront you and he approached you again, causing you to turn around and run.  The proprietor chased you and grabbed your backpack, resulting in personal items falling on to the ground from it..  As you continued running, further items fell out.

8You were seen by protective service officers running to Bendigo Railway Station where footage was captured of you on CCTV.  Footage was also obtained from the store and this enabled police to identify you when they obtained photographs of you at your school.

9When you were arrested and interviewed you denied the offending, even when shown the CCTV footage, but later when further evidence was obtained, you made admissions.  You told the police that you had been very intoxicated at the time, and acted without thinking, and that afterwards you had walked to a hospital and had seen a psychologist.  You said you had denied it because you were scared, but were admitting to it because it was the right thing to do and you were very disappointed with yourself and sorry for what you did.

10The police charged you and released you on bail and you pleaded guilty at the first opportunity, at the first committal mention, in December last year.  That has meant the case has progressed very quickly and has avoided the need for a trial and for the witnesses to have to give evidence.  That is an important advantage for the system of criminal justice and you are entitled to a discount on your sentence.

11It is also accepted as an indication of remorse and you have expressed that as well, to the police, as I have just said.

12As to your background, you were brought up by your mother as a sole parent, and at the time of the offending you were experiencing tension at home with your mother and stepfather.  At the same time you were drinking alcohol daily, with this excessive use dating from a tragic incident in 2016, when you witnessed the death of a friend struck by a falling tree limb.

13Owing to these tensions you moved into your sister's house.  However, she had insisted that you leave the house, it would seem, because of your drinking and the offending then occurred.  Apparently you did not need the money that you thought you might obtain from the robbery and it was a thoughtless, spur of the moment decision to take advantage of a soft target. 

14It is a very serious offence which can readily be seen by the maximum penalty of 20 years' imprisonment.

15In this case there were no signs of any planning or method and it was unsophisticated in its execution.  You were easily identified with your face clearly visible on the CCTV footage and through the personal items which spilled out of your backpack. 

16The principle of general deterrence should be reflected in a penalty imposed on a person who offends in this way so that others will know that they will be punished severely.  But a young person can be treated different by the courts in some circumstances, where even though the crime is serious, the importance of the young person's rehabilitation, takes precedence over the need for stern punishment.  That is the case here.

17You have no prior convictions.  You are employed as an apprentice roofing plumber and you are completing Year 12 through TAFE.  You have an excellent reference from your employer.  You were helped to find this work through an organisation called Second Chance Bendigo and I have read a report which tells me that this organisation will continue to work with you for the next few months.  This would seem to be good support for you, and you are doing well, according to the writer of the report.

18You now live with your partner and her mother and you have reached better terms with your own mother.  You appear to have the capacity to be a contributing member of society if you continue on your present path, and prison would not assist in that outcome.  That is another way of saying that you seem to have very good prospects of rehabilitation.

19Prison is certainly warranted by this crime and it is very unusual for any other sentence to be imposed.  It would bring your apprenticeship and your studies to an end and would place a significant hurdle in your path of completing them.

20You have been assessed, as you know, as suitable for a Community Correction Order.  It has the benefit of providing treatment for alcohol abuse and for psychological counselling which might address any residual issues resulting from the trauma of witnessing your friend's death.  Other personal issues, which are likely to have caused some turmoil and upheaval in your life while still at a young and impressionable age, can be addressed through these means. 

21I will ask you to stand now please, Mr Bird, while I explain that I am going to impose a Community Correction Order which will begin today and it will last for two years.  That is to allow plenty of time for you to make maximum use of any services provided for you.

22I will not record a conviction.  That is a considerable concession warranted by your youth and your record free of blemishes apart from this crime.

23If you were to breach the Community Correction Order that could change of course, because if the breach were found proved, you would be re-sentenced and the court would not be so lenient next time.

24The order also requires you to perform 100 hours of unpaid community work over six months.  In view of the fact that you work full time, and are also studying, I will allow any time you spend attending programs to be credited against the work hours.

25You must also be assessed, and if necessary, treated for alcohol abuse and you must engage in counselling as directed.  That was not recommended by the assessing officer, but it seems to me that there might be indications for it and I will make that a condition. That is why I will also require you to attend a judicial monitoring hearing on 6 August so that I can receive a progress report and find out whether counselling has been necessary and whether it has been provided.

26You must go to the Corrections Office here in Bendigo at No.3 William Vahland Street, which is just around the corner from here, by 4 pm on Wednesday, which is 11 April. 

27The prosecution seeks an order for the disposal of an item and I make that order.  I do not think I heard whether that is consented to, Mr Habib.

28MR HABIB:  It is, Your Honour.

29HER HONOUR:  All right, thank you.  If you had pleaded not guilty I would have sentenced you to a four months sentence of imprisonment with a two year Community Correction Order. 

30Are there any other matters that I have neglected or omitted?  Mr Moore?

31MR MOORE:  No, Your Honour.

32HER HONOUR:  No.  Mr Habib?

33MR HABIB:  No, Your Honour.

34HER HONOUR:  The CCO is ready to be signed.  Would you like to have a look at that first, Mr Habib?

35MR HABIB:  Yes, Your Honour. 

36(Order signed and acknowledged.)

37HER HONOUR:  One more thing, Mr Bird, the judicial monitoring hearing on 6 August will involve you coming here to this court.  I will be in Melbourne and there will be a video link so you will appear here, probably with the Corrections Officer who is going to be your case manager.  The lawyers will not be here and I will have a discussion with you once I have read the progress report that I receive.

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  Good.  Thanks, Mr Habib; thank you, Mr Moore.

40MR HABIB:  Thank you, Your Honour.

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