Director of Public Prosecutions v Bravo

[2019] VCC 807

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00914

DIRECTOR OF PUBLIC PROSECUTIONS

v

JON PAUL BRAVO

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May (Plea)
DATE OF SENTENCE:	3 June 2019 (Sentence)
CASE MAY BE CITED AS:	DPP v Bravo
MEDIUM NEUTRAL CITATION:	[2019] VCC 807

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Plea of guilty - plea following sentence indication hearing - damaging property - attempted armed robbery at a service station and a convenience store - possession of controlled weapons namely a claw hammer, meat clever and fold-out knife - partial admissions to police - specific deterrence is minimal - low risk of recidivism.

Legislation Cited:  Crimes Act 1958 (Vic), Control of Weapons Act 1990 (Vic), Mental Health Act 2014 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Community Correction Order for a period of 2 years with punitive and therapeutic components.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecution
For the Accused	Mr J. van Arkadie (Sentence) Ms D. Dempsey (Plea)	Victoria Legal Aid

HIS HONOUR: 

Introduction

1Jon Paul Bravo, you have pleaded guilty to one charge of damaging property contrary to s.197 of the Crimes Act 1958 which carries a maximum penalty of 10 years' imprisonment, Charge 1, and one charge of attempted armed robbery contrary to ss75A and 321M of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment, Charge 2.

2You have also pleaded guilty to one related summary offence of possession of controlled weapons, being a meat cleaver and a fold-out knife, without lawful excuse contrary to s6(1) of the Control of Weapons Act 1990 which carries a maximum penalty of 12 months imprisonment or 120 penalty units.

3You have also admitted your prior criminal record.

Circumstances of the offending

4Prosecution opening was tendered on the plea and may be summarised as follows.  On the evening of Sunday, 29 October 2017, you were at 30 Cumberland Road, Pascoe Vale, the residence of your partner Jenny Kitsos.  Earlier in the day you had been arrested by police for the purposes of a mental health assessment.  You were assessed at St Vincent's Hospital and discharged in the evening of 29 October 2017.

5You left 30 Cumberland Road, Pascoe Vale, in possession of a claw hammer and a brown backpack containing a meat cleaver and a small fold‑out knife.  At 12.03 am on 30 October 2017 you walked south on Cumberland Road towards Bell Street.  You used the claw hammer to smash a bus shelter window near the corner of Bell Street and Cumberland Road.  It was these facts that relate to Charge 2, criminal damage.

6You continued walking towards Bell Street where you stopped at the Caltex service station in Bell Street, Pascoe Vale, approximately 10 metres from the bus stop.  You approached the security night counter on the outside of the service station and yelled at the two shop assistants behind the counter, Mr Venugopal Manchikatla and Mr Prashanth Kanghula.  You yelled the words, “Let me in”, and, “Give me the money”.

7You then used the hammer to strike the window two times while making demands for the money and to be let inside.  You briefly walked towards the door entrance, however, as there were other customers inside the store, you walked off towards Cumberland Road.  The incident lasted approximately 25 seconds and was captured on the Caltex Service Station CCTV cameras.  It is these facts that relate to Charge 2, attempted armed robbery.

8At approximately 12.37 am, you attended at the 7‑Eleven store at Bell Street, Pascoe Vale.  The 7‑Eleven store is approximately 300 metres from the Caltex Service Station.  You entered the store carrying the claw hammer and placed it inside the store on the ground, prior to approaching the shop attendant.  You asked the shop attendant, Mr Adarsh Tokala if you could use the store phone.  You contacted your partner, Ms Kitsos, to ask her to pick you up.  You then walked outside the store and sat down.

9At 12.04 am, Sergeant Mark Franco and Constable Lee Atkinson drove past the 7‑Eleven store and observed you sitting near the entrance.  Constable Atkinson arrested you and observed the claw hammer to be on the ground approximately 1.5 metres from where you were sitting.  You were also in possession of a brown backpack which contained a large meat cleaver and a fold‑out knife.  It is these facts that relate to summary Charge 5, possession of controlled weapons.

10You were conveyed to the Moonee Ponds Police Station for interview where you made the following admissions.  You admitted to attending at the Caltex Service Station and hitting the window twice with a hammer, however denied this intention was to commit an armed robbery.  You stated that you had a disagreement with your girlfriend earlier in the evening.  You stated: 

“So we had a bit of a disagreement.  I'd left the house and I'd lashed out.  I didn't really leave the house in the mind state or with the plan to commit any armed robbery.  It was just more of a lashing out of anger.”

11You stated that you did not recall what you had said to the attendants when you were hitting the store window, stating:

“I don't even know what I said.  I can't remember what I said.  I had a Seroquel in the hospital, which is an antipsychotic medication that releases dopamine in the brain and makes you tired.”

12You made admissions to wearing sunglasses on your face during the attempted armed robbery however denied that you wore them to conceal your face.  You made admissions to possessing both the fold‑out knife and the meat cleaver.  You stated:

“I've always carried a hammer and a meat cleaver in my bag, which I understand is illegal, for self-defence, but at the same time, I'm in fear of my life.”

Objective seriousness of the offending

13Attempted armed robbery is a serious offence which is reflected by the maximum penalty of 20 years' imprisonment.  In this case, however, for a number of reasons, the offence may be categorised at the lower - towards the lower end of the spectrum.  Because of the time of night, the service station was operating with a security night counter.  There was no attempt by you to enter the service station and as such the demand that you made was from the outside of the premises.

14You struck the glass of the service station window while you were making demands to be let into the service station, and for the attendants to provide you with money.  Despite being in possession of a claw hammer which would have had the ability to smash the window, clearly you did not hit the window in such a way that caused any damage.  Further, the whole incident was of very short duration.  Once you had made the initial demand, you desisted and left.

15Mr Raimondo, who appeared on behalf of the Director of Public Prosecutions, also submitted that the attempted armed robbery may be viewed at the lower end of the scale for the reasons that I have outlined above.  That said, this would have still been a very frightening experience for the shop attendants and other customers in the service station.  This offence occurred late at night when service station attendants are vulnerable and may be viewed as soft targets.

16The criminal damage charge seems to have occurred as a spontaneous act by you when you were in an agitated state, however it is criminal damage caused to a public facility inevitably resulting in inconvenience and expense.

Personal circumstances

17You are now 30 years and were 29 at the time of the offending.  You are the oldest of a sibship of three boys.  Your father and mother are both employed in full-time work, your father working in a brewery and your mother working for a government agency.  Your brother who is aged 28 lives at home while studying and your younger brother, aged 26, is also at home and works in the security industry.  You maintain contact with your mother and one of your brothers, however you have no contact with your father or your younger brother. 

18You attended a number of schools in your younger years moving largely because of your behaviour.  You left school in Year 10 and immediately began to work with a furniture company before working with your father.  You left that job and worked casually in a number of occupations including in the building and construction industry, completing a Certificate III in Civil Construction in 2012.

19You have been in a relationship with your partner Jenny Kitsos for over 12 years.  You are currently living with Ms Kitsos together with her mother and her elder sister.  Ms Kitsos is in fulltime employment and has supported you through your court appearances.  Her mother is also in full-time employment and has also attended your court appearances in support.

20While your criminal history is relatively limited, you do have a significant history of drug use.  You first used cannabis when you were in primary school, and then methamphetamines in your early teens.  While you have been using methamphetamines recreationally for a number of years, you were able to maintain employment and your relationships, however your drug use increased significantly in recent times.

21You suffered an injury to your hand approximately three years ago which restricted your ability to work.  You began to experience deterioration in your mental health and as a result your drug use, including methamphetamine use, increased.  In the time leading up to the offending you had three admissions into hospital as a result of drug-induced psychosis; 18 August 2017, 10 September 2017, and 29 October 2017.

22At the last admission, which was at St Vincent's Mental Health, you were released at 10.16 pm.  It was approximately two hours later that you committed these offences.

23A report was prepared by forensic psychologist Laura Fleming and tendered on the plea.  The report provides a very detailed medical and mental health history.  It also discloses history in relation to other traumas in your life, such as sexual abuse when you were around the ages of 8 to 12, perpetrated by a stranger.  Ms Fleming supports the submissions that were made on your behalf at the plea that your mental health deteriorated around 2017 primarily as a reaction to drug use.

24You have been under the care of your local general practitioner, Dr Bill Arsenakis, to discuss and manage your mental health issues.  Between March and July 2017 you were attending fortnightly sessions with psychologist Nicole Mogford.  Following your release on the Court Integrated Services Program, or CISP, and through that program you re-engaged Ms Mogford, continuing counselling with her until earlier this year.

25In August 2017, following the first admission to hospital, you were placed on the antipsychotic medication Olanzapine.  At the admission in September 2017, you presented with auditory hallucinations and paranoia including a belief that there may be a device in your brain. 

26The admission on 29 October 2017 to St Vincent's Mental Health was initiated by police pursuant to s.351 of the Mental Health Act when they were called to your home by your partner after you became agitated.  You were reported to be distressed, crying, you were hypervigilant, and you were suffering auditory hallucinations. 

27As noted, it was shortly after you were discharged that you left your home and committed the offences.  You stated to Ms Fleming that you felt unsafe and did not want to stay at home.  You stated that you did not intend to harm anyone, but rather, you were just ‘lashing out’. 

28As noted, you were released onto the CISP program following your arrest and completed that program successfully.  In February 2018, you completed the Discovery Therapeutic Day Program run by Odyssey House.  The program runs for five consecutive weeks and participants attend five days per week with a focus on reducing or ceasing drug use.  Further, at the plea, you produced a recent drug screen confirming you are currently drug free.

29You are now a fulltime student completing your second year of a Bachelor of Building Surveying at Victorian University.

Sentencing considerations

30This matter came before me initially as a sentencing indication hearing.  Following that hearing, you entered pleas of guilty to the charges now before the court.  While you ran a contested committal in relation to the armed robbery, you have ultimately sought to resolve the matter via the sentencing indication hearing.  As such, by your plea, you have accepted responsibility for your conduct which has avoided the need for a trial, and most importantly, has avoided the need for the witnesses to give evidence and relive the event.  By your plea, you have therefore facilitated the course of justice.

31While the prosecution accepted that the offending falls towards the lower end, Mr Raimondo correctly submitted that the victims in this case were vulnerable and simply going about their work when you confronted them.  As such, general deterrence must still feature prominently in the sentencing discretion, along with denunciation of your conduct.

32Specific deterrence is of relevance.  You do have a criminal history, however you were last before the courts in 2008 and the most serious sentence you have received thus far has been a fine.  I was also told that in July 2018 you were charged with possession and use of amphetamine, for which you received a bond. 

33In the circumstances where you have been battling with overcoming your drug addiction, I do not place a great deal of weight on that matter.  It is clear that you have taken some substantial steps in dealing with your drug problem and I accept that this is an ongoing process. 

34In all the circumstances, in my view the need for specific deterrence is minimal.

35As to your prospects of rehabilitation, in my view they may be assessed as very strong.  Without repeating the various steps you have taken on the path to rehabilitation it is clear that you are well on the way to becoming a productive member of the community and remaining drug and crime free.  You are part way through a degree, you have a strong work history, and you have a supportive partner and extended family.  I also accept the opinion of Ms Fleming that if you remain on the path you are currently on you present as a low risk of recidivism.

36In all the circumstances, in my view the relevant sentencing considerations are able to be met by the imposition of a community correction order which contains both punitive and therapeutic components.

Sentence

37Mr Bravo, could you please stand.

38Jon Paul Bravo, on Charge 2, attempted armed robbery, you will be convicted and placed on a community correction order for a period of two years.

39On Charge 1, criminal damage, you will be convicted and placed on the same community correction order.

40The community correction order will have both punitive and therapeutic components.  You will be required to complete 200 hours of community work and engage in programs to further address your drug use and assist you in remaining drug free.  You will also be required to engage in treatment in relation to mental health and you will be subject to supervision.

41Pursuant to s.48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.

42On the related summary charge, Charge 5, possession of controlled weapons, you will be convicted and fined $500.

43Pursuant to s.6AAA of the Sentencing Act 1991 I indicate that had you not pleaded guilty, I would have sentenced you to a period of nine months' imprisonment together with a community correction order.

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