Director of Public Prosecutions v Chand

[2017] VCC 1787

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00613

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN CHAND

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v CHAND
MEDIUM NEUTRAL CITATION:	[2017] VCC 1787

REASONS FOR SENTENCE
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Subject:
Catchwords:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms E. Finnigan
For the Accused	Mr C. Hooper

HIS HONOUR:

1Adrian Chand, you have pleaded guilty to the following offences:

oAggravated burglary, which carries a maximum penalty of 25 years imprisonment;

oCommon law assault, which carries a maximum penalty of five years imprisonment;

oTwo counts of armed robbery.  Each carry a maximum penalty of 25 years imprisonment; and

oPossession of a drug of dependence (heroin).  As this offence was not committed for any purpose related to trafficking in the drug, the maximum penalty is one year's imprisonment or a fine of 30 penalty units.

2You admitted a single prior conviction for making a false report to police.  It is irrelevant to this offending.  The prosecution tendered a summary of prosecution opening as Exhibit A.  A summary of your offending is as follows.

3On Tuesday, 1 November 2016 at approximately 4.50 am, you entered the backyard of a house at 211 Melrose Drive, Tullamarine with your co-offender, Luke Burns.  In the backyard was a bungalow where your victim, Andrew Basile lived.  You knew him as he had sold a car to you and there was an ongoing dispute about that car.

4When you entered bungalow, you were holding a filleting knife.  You entered with the intention of stealing money from him.  I note that the first offence was completed at this point.  You are not charged with theft.  However, as context evidence to the charged offence, it should be noted that you held the knife to the body and neck of the victim, demanding money whilst your co-offender pinned his arms.  You took his wallet, cash and medication and placed them in your pockets.

5The assault against Mr Basile occurred when your co-offender let go of his arms and he, the victim, tried to wrestle with you and strike you and your co-offender.  You and your co-offender punched the victim to the head.  You left the bungalow whilst your co-offender continued to push the victim.  The victim’s father arrived from the house and your co-offender pushed him also.  You both made your escape up the driveway.

6The first charge of armed robbery occurred on 15 December 2016 in St Albans.  You got in a taxi and told the driver that you would give him directions.  As you directed the driver where to stop, you pulled out a large knife out and held it to the driver’s throat.  You demanded money from the driver and he gave you $300 from his wallet.

7A few hours later on the same evening, you got in another taxi and directed the driver to drive off.  Almost immediately, you pulled out the same knife.  The driver grabbed the blade and sustained lacerations to his hand.  As he tried to stop you from pointing the knife at him, you grabbed $200 cash from his shirt pocket and you fled.

8You were arrested on 23 December 2016, as you were about to be discharged from the Royal Melbourne Hospital. When you were arrested, police found a Ziploc bag containing heroin.  You made a largely no comment record of interview. You did, however, tell police that you had returned to using heroin after a period of abstinence and that you had been homeless for about a month.  You told police you had tried to overdose on heroin.  You have been in custody since you were arrested on 23 December 2016.  You have spent 339 days, excluding today, in pre-sentence detention for this offending.

9I turn now to an analysis of your offending.  The aggravated burglary represents a serious example of this type of offending.  Your entry into a person’s home late at night, in the company of another, whilst armed with a knife, was confrontational and no doubt terrifying.  The fact that you were armed with a knife and were in company with another suggests that your conduct had to be the subject of agreement and at least an element of planning was involved.

10After that you and your co-offender assaulted the victim by punching him several times.  Although no particular physical injuries were reported, I take account of the setting in which the assault occurred.  As I have noted, it was in the victim’s home and into the late night, early morning.  Moreover, as I have noted, you were in company of another and you both assaulted the victim.

11I consider the circumstances of the aggravated burglary and of the assault on Mr Basile, show your culpability to be very high for this serious offending. Principles of deterrence, denunciation and protection of the community loom large.  Home invasions are calculated to terrify the occupants.  People are entitled to feel safe in their homes.  Your entry, in company, and whilst armed with a knife, must be met by stern punishment.

12Likewise, the two armed robberies of the taxi drivers represent serious examples of armed robberies on soft targets.  The still images from the CCTV footage, Exhibit C on the plea, graphically show the frightening nature of the knife you produced and the way in which you used it to menace each driver.

13Furthermore, there was an escalation between the second and first of these incidents.  You were not satisfied with having taken $300 from the first driver, but hours later menaced another driver.  Although you are not charged with the injury caused to the second driver, your offending is made more serious by the fact that he had to resort to grabbing the blade of the knife, in order to try and resist your attack.  Nevertheless, you still managed to rob him of money that he held.

14Once again, I make the point that those who engage in criminal behaviour by terrorising soft targets, must expect that they will be met with severe punishment.  The Victorian people need and want an evening and night taxi service.  The drivers who are willing to undertake this work, are entitled to feel safe in undertaking this vital, difficult and often low-paying work.  Stealing from hard-working soft targets deserves condemnation and denunciation by the community.

15I turn now to your personal circumstances.

16You are 25 years old and were born in May 1992. You were twenty-four and a half years of age at the time at this offending.

17Your family originally migrated to Australia from Fiji in 2002 when you were approximately 10 years old. Your mother is a payroll officer and your father is an environmental engineer.  You have an older brother who is aged 30.  Your childhood in Fiji was good.  Your family life in Australia was unremarkable, although you told the psychologist that you were essentially unsupervised as your parents both worked a lot and your older brother did not spend much time with you.  At school you considered that you were the target of bullying and racism.

18You told the psychologist that you commenced using alcohol at age 14 and that you were consuming it on a daily basis from Year 10 and that you would start your morning with a couple of shots of alcohol.  You stated that you started using heroin intravenously in Year 9 and you found yourself dependent on the drug by Year 11. You reported that you were using $100 worth of the drug each day for over a year.  You did not explain how you financed this habit.

19The psychologist to whom I refer prepared a report, that is Warren Simmons.  I did not find the report to have much value.  Under the heading “Education and Employment history”, on p.3 of the report, you said "After you were introduced to heroin, your school performance decreased and that you repeated Year 10".  You reported that you were asked to leave after some time when your teachers noticed a decline in your performance and you moved to the William Angliss College.  

20You told the psychologist that you dropped out of William Angliss College after several months and that you worked as a chef on a boat on the Yarra River for twelve months.  You then reported that you worked for your father intermittently for four years, that you then travelled around Queensland and New Zealand for short period of time and then worked as an environmental engineer in the mines at Gladstone for two years, before returning to Melbourne at age 20.

21You then stated that you did not work for a period of between one and two years.  You lived off your savings from the mines.  You obtained a position at Melbourne Airport as a team manager and then worked for several months in car sales at Nissan.  In the meantime, it is apparent that you relapsed back into heroin use by about November 2016 and then you have spent almost a year in custody.

22Quite frankly, your history is unbelievable; both as to the timeframe and to  your purported achievements.  This is all the more so when later in the report, under the heading “Drug and Alcohol History”, Mr Simmons reports “Following Year 11”, you found yourself dependent on heroin; using $100 a day.  In addition, the history sets out your abuse of alcohol on a daily basis in Year 10 and your use of cannabis during Years 10 and 11 where you reported smoking “up to a quarter of an ounce a day”.

23In the circumstances, I am prepared to conclude that since your teen years, you have suffered from a drug addiction, but it is difficult to otherwise be satisfied as to the nature, extent, and duration of that addiction and as to the periods of apparent abstinence from the drugs.

24Unfortunately, it is therefore also difficult for me to place much weight on
Mr Simmons' report, as all of the material contained in it is reported by you; and for the reasons I have outlined, I consider you to be an unreliable historian.  There is no other information available about your purported mental health difficulties.  In any event, Mr Hooper only sought to rely upon the report for its provision of a convenient biographical summary and to say something of the support provided to you by your family.

25To that end, I have the letter of your mother written 27 November 2017, which states that you still have her support.  Although Mr Simmons reported that you had been kicked out of home for your drug use and you were estranged from your father as at the date of interview, that is 12 October 2017, your mother reports in her letter that you have the support of your father and your grandmother also.

26Your time in prison has been troubled.  The email of Deborah Coombs, dated 24 November 2017, from the Department of Corrections, indicates that you have spent 109 days in lockdown as a management response to your behaviour in custody.  You have been found with tobacco, medication and smoking in your cell.  You have been found with dangerous items and you have been disciplined for fighting with another prisoner.

27On your behalf, Mr Hooper submitted that the following matters mitigate your sentence.  First, the plea of guilty was entered at the earliest time and has utilitarian benefit.  As such, it should mitigate the sentence imposed upon you.  Second, the plea was also attended by remorse as outlined in the report of
Mr Simmons.  Third, that you have a good work history. Fourth, you still have the support of your family and you have indicated an intention to overcome your drug addiction and, fifth, you are still relatively young.  As such, you have reasonable prospects for your rehabilitation.  This again is outlined in the report of Mr Simmons.

28Ultimately, Mr Hooper submitted that I should impose a combination period of imprisonment with a community corrections order.  Since 20 March 2017, the period of imprisonment which may be combined with a community corrections order is limited to twelve months. Although you have served over 342 days pre-sentence detention, Mr Hooper submitted that such a sentence was technically permissible: see Younger v R [2017] VSCA 199.

29In my opinion, the offending committed by you over November and December 2016 is far too serious to contemplate such a disposition.  Notwithstanding the lack of prior convictions, and that this is the first period you have spent in prison, each of the offences you have committed warrants a substantial term of imprisonment.

30Furthermore, although you were relatively young when the offending occurred, and you are now still only 25 years of age, you were not so young that your youth should be considered a mitigating factor dominating over deterrence, denunciation and protection of the community. Moreover, even the cases which make allowance for youth, recognise that the seriousness of the offending in some cases, means that consideration of an offender’s youth must take a backseat.  In my opinion, this is such a case where deterrence, denunciation and protection of the community remain dominant sentencing principles.

31In reply, Mr Harrison, on behalf of the Crown, submitted that this offending must be met by a period of immediate imprisonment and not by a combination sentence of imprisonment with a community corrections order.  Furthermore, Mr Harrison submitted that the offending in this case was separate from each other instance and must be met with periods of cumulation between the individual charges.

32I have had regard to the sentencing snapshots for aggravated burglary, from June 2016, and the decisions of the Court of Appeal in Hogarth, Meyers and the recent decision of Hi.  I have also looked at the sentencing snapshots for armed robbery, from June 2016.

33In the course of submissions, Mr Hooper put a secondary position.  He submitted that if I did not accede to the combination sentence, then, in fixing an overall total effective sentence, I must have regard to the principal of totality.  That is, whilst I must fix appropriate sentences for each of the charges on the indictment, the overall total effective sentence must not be crushing.  To this end, Mr Hooper submitted that the sentence I impose requires a measure of concurrency between each of the sentences.  Furthermore, in order to assist with your rehabilitation, and given your still relatively young age, I should impose a longer than usual non-parole period.

34Although I have the letter from your mother and outline of your work history, (which I consider unreliable) as outlined in the report Mr Simmons, I do not have any other evidence to suggest that you have taken steps towards committing to your rehabilitation.  In fact, your conduct in prison can only be described as disruptive.  

35On the material I have before me, I can only consider the prospects of your rehabilitation as fair.  I do consider that you are still a young man, and it is true that you have no relevant prior convictions.  This is your first period of imprisonment.  It can only be hoped that you learn the lessons from the punishment that prison must be, and that you learn respect for the prison authorities and for those around you.  Without this, your chances of getting parole will be reduced.

36I have decided that the sentence I impose upon you, and the structure of that sentence, should provide you with the opportunity to get parole.  If you work hard from now on and you are granted the opportunity for release on parole, then the parole structure and the appointment of a parole officer, will assist you in your reintegration back into the community.  

37Furthermore, you should take the opportunity whilst still in prison, to complete rehabilitation courses.  Your present abstinence from drugs might not be easy to maintain once you get back into the community.  However, it is vital to you and to your rehabilitation that you put your offending and your drug use behind you.

38Mr Chand, I will ask you to stand up now and I will impose the sentences on you.  On the charge of aggravated burglary, you are convicted and sentenced to a period of imprisonment of three years.  On the charge of common assault, you are convicted and sentenced to a period of imprisonment of six months.  I order that one month of the sentence be served cumulatively on Charge 1.

39On the charge of armed robbery, which is Charge 3 on the indictment, you are convicted and sentenced to a period of imprisonment of two years and eleven months.  I order that one year of that sentence be served cumulatively on Charge 1.  On the charge of armed robbery, that is the fourth charge on the indictment, you are convicted and sentenced to a period of imprisonment of three years.  I order that fifteen months of that sentence be served cumulatively on Charge 1.

40On the charge of possession of heroin, you are convicted and sentenced to a period of seven days imprisonment.  The total effective sentence is therefore one of five year and four months.  I order that you serve a non-parole period of three years and nine months before you are eligible for parole. 

41I declare the period of 342 days excluding today pre-sentence detention as reckoned as already served.  So that comes off the sentence and then the 6AAA declaration is that but for your plea of guilty, I would have imposed a sentence of seven years and four months, with five years and four months to serve. 

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