Director of Public Prosecutions v Chand
[2015] VCC 142
•19 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-02043
CR-14-02155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISHNEIL CHAND & ANDREW NITIN MAHARAJ |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2015 | |
DATE OF SENTENCE: | 19 February 2015 | |
CASE MAY BE CITED AS: | DPP v Chand & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 142 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson | OPP |
| For the Accused | Mr R. Keating Ms K. Shepherd | Slink & Keating Leanne Warren & |
HIS HONOUR:
1 Krishneil Chand, you have pleaded guilty to two charges of armed robbery and one charge of common assault.
2 Andrew Maharaj, you have pleaded guilty to one charge of armed robbery and one charge of common assault.
3 The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for common law assault is five years' imprisonment.
4 The prosecution has presented a summary of your offending. I do not intend to repeat the whole summary. It is Exhibit A in these proceedings.
5 Briefly, you are cousins. At approximately 10.26 pm on 23 August 2014 you both attended at the Sexyland store in Keysborough. An unknown person drove you to that address and waited while you committed the offences. You were each armed with a knife and wearing a disguise.
6 The victims of the first two charges were store attendants. You both entered the store and jumped over the service counter. Mr Chand, you told one of the victims to go to the safe. You grabbed her and pushed her to the tearoom, asking her to “fucking hurry up”. Whilst the victim was accessing the safe, you stole her mobile phone. The victim gave you the coins and notes from the safe. You grabbed her and led her back into the store.
7 Mr Maharaj, whilst your co-offender was in the tea room, you told the other female victim to open the till and give you the money. When she opened the till, you told her to “take the money out and put it in the bag”. You took approximately $600 and you cut the store’s telephone cable.
8 Both of you then held knives towards the bodies of the victims and moved them towards the front door.
9 Meanwhile, a group of males on the street outside had become aware of what was happening. They called the police and approached the vehicle driven by your accomplice. He or she drove off.
10 You both ran from the store to the place where you believed the getaway vehicle was waiting for you.
11 One of the men from the group of males outside, a Mr Manaia, was standing in the area and you, Mr Chand, said “nah G, fuck off” and you swung your knife around causing him to back away. You then ran past him.
12 Mr Maharaj, as you ran out of the shop, you lost your footing and fell over against a wall. Mr Manaia kicked you in the chest causing you to drop some of the stolen money. You got to your feet and threatened him with your knife, causing him to back away. You then ran from the scene.
13 At approximately 10.40 pm you were both intercepted by police and arrested. You were subsequently remanded in custody.
14 I have read the two victim impact statements. Both victims have suffered emotional distress with sleeplessness, anxiety and flashbacks. It was undoubtedly a terrifying ordeal for both these women victims.
15 This is serious offending. It was planned. You gathered your weapons and decided on your target. You chose a soft target. You were driven to the venue by an unknown third person who was going to be your getaway driver. In effecting the armed robberies, you disguised yourselves, you were each armed with a knife and you were threatening towards the victims. As I have said, the victims have suffered emotional harm as a result of your very serious offending.
16 This is a case where general deterrence is a paramount sentencing consideration. Just punishment and denunciation are also highly relevant sentencing considerations.
17 You both have prior convictions.
18 Mr Chand, you have a large number of prior convictions in the Children’s Court. You have received a probation order, youth supervision orders, a youth attendance order and sentences of detention. On 8 May 2012, you were convicted at the Melbourne Children’s Court on a large number of offences, including eight counts of armed robbery. The prosecutor told me that some of those armed robberies were committed on other Sexyland stores. You obviously knew that these stores were a soft target.
19 Given your criminal history, specific deterrence and protection of the community are relevant sentencing considerations.
20 Mr Maharaj, compared to your cousin, you have a relatively modest criminal history. You have no history for very serious offences such as armed robbery. This offending represents a concerning escalation in your criminal behaviour.
21 In your case, specific deterrence is relevant but not to the same degree as it is for Mr Chand.
22 I now move to matters relevant to your backgrounds and those matters in mitigation.
23 Mr Chand, you are a 20-year-old man. You are a young offender. For a young offender, rehabilitation is a very important consideration in the overall sentencing process. Whilst I bear the question of your rehabilitation firmly in my mind, the serious offending in this case and the number of opportunities you have been given in the past to address your criminal behaviour mean that the other sentencing considerations that I have already mentioned must be given appropriate weight.
24 You have hardworking parents. No doubt they are devastated by your past criminal behaviour and your current predicament. Notwithstanding your behaviour, they are still prepared to support you. Unfortunately, their support in the past has not stopped you from offending.
25 It seems that issues concerning your behaviour were becoming particularly obvious in 2009. In the latter part of that year, you were transferred from Cheltenham Secondary College to an alternative school to complete year 9.
26 Your first appearance in the Children’s Court is in November 2009. From that time until February 2013 you appear with monotonous regularity in that court.
27 I have already referred to the appearance in the Children’s Court on 8 May 2012. On that day, you were sentenced to a total effective term of detention of one year and eight months. After commencing that sentence, you were involved in a serious incident in the Youth Justice Centre that resulted in the Youth Parole Board transferring you to Port Philip Prison on 6 July 2012. You were then held in the Charlotte Unit for three months in very onerous conditions. You were effectively in solitary confinement for 23 hours a day and you were handcuffed during your one hour of exercise time. The Ombudsman, in a report of December 2013, stated that in confining you in this way, Corrections Victoria acted inconsistently with the Victorian Charter of Human Rights. While this is a matter relevant to your background, it does not, of course, offer an excuse for your current offending.
28 While undergoing the sentence just referred to, you managed to complete year 11. This indicates that you are intellectually capable.
29
You were released on adult parole on 12 June 2013. Importantly, there was no breach of parole and you managed to stay out of trouble for just over
12 months.
30
On the day of this offending, you were with your cousin and you used ice. You and your cousin determined – with an unknown third person – to commit the armed robbery on Sexyland. Clearly, your previous offending made you aware that Sexyland was likely to be a soft target. I do not mean when I say this that the idea to commit the armed robbery was your idea alone. Your
co-offender clearly was a willing participant, but you clearly influenced the choice of target.
31 You have pleaded guilty at the earliest opportunity. It is an acceptance by you of responsibility for your criminal offending. The plea has also saved the victims from the trauma of giving evidence and saved the community the expense associated with a criminal trial. You will be given credit for all of these matters.
32 Mr Chand, I am guarded about your prospects for rehabilitation. I accept that you are still a young man capable of reformation. It is to your credit that during your current period in remand you have been regularly attending meetings of Narcotics Anonymous and also completed a certificate in basic emergency life support. However, you have a significant criminal history. You have been the beneficiary of many orders in the Children’s Court that have been designed to facilitate your rehabilitation. Those orders have not been successful. The ongoing support of your family has not stopped your offending, and although you did comply with parole and remain out of trouble for over 12 months, you relapsed into drug use and involved yourself in this very serious criminal offending. You must have had a clear understanding of what would happen to you if you were caught.
33
Mr Maharaj, you are a 33-year-old man from a dysfunctional and unstable family background. Dr Ball, a forensic psychologist, assessed you on
20 January 2015 and provided a report that sets out your chaotic family circumstances. Life has not been easy for you. You have had a difficult relationship over the years with your mother and poor relationships with your father and stepfather, both of whom were violent towards you. You are poorly educated and you are illiterate. You told Dr Ball that you were kicked out of home at the age of 13 and since then spent time living on the streets.
34 You have been using alcohol heavily since the age of 13 and been using cannabis, heroin and methylamphetamine since your teenage years. You regard yourself as addicted to all of these substances. Dr Ball expresses the opinion that you meet the diagnosis for severe stimulant use disorder and severe opiate use disorder. It is no surprise to read that your work history is extremely limited.
35 Your local general practitioner states that you have a longstanding history with depression. He does not allege that your depression contributed to this offending in any way.
36 Dr Ball says this about your mental health status when he assessed you: "Mr Maharaj’s mental health status was generally unremarkable. He reported no symptoms of depression or anxiety and described his mood in generally positive and stable terms”.
37 Dr Ball administered various tests to assess your intelligence. He said that the test results reflected a generally impaired IQ that falls in the moderately retarded range. He said that your full scale IQ falls at the "first percentile meaning that 99 per cent of the population would perform better on these tests” than you.
38 Dr Ball noted that you have a life-long intellectual impairment and that you are illiterate, innumerate and generally low functioning.
39
He confirmed that your intellectual impairment will not remit. Your
self-defeating and antisocial personality features, “while not necessarily lifelong, remain operative and will require long term treatment and management".
40 In his submissions, your counsel indicated that he relied on the application of five out of six of the Verdins principles. I have no difficulty in accepting that one of the principles applies. I am satisfied that your depression and intellectual impairment would make imprisonment more onerous for you than it would be for someone without those conditions. It is a relevant matter for me to take into account in sentencing you. However, I am unable to accept that the other Verdins principles have application.
41 They do not apply because the evidence fails to show that the offending was relevantly connected, causally or otherwise, with your intellectual impairment. The material in the report from Dr Ball speaks directly against such a connection. In his report, he says this about your description of the offending: "[Mr Maharaj] said that he had a clear recollection of the incident and had consumed about one gram of ice prior to [the] robbery. He said, 'I had a big habit. I was also coming down from heroin. I was homeless on that day. Mum kicked me out of the house. It was the 14th or 15th time this year and I didn’t want to be homeless anymore. I was hanging out for drugs too. I just want to go ‘fuck you, Mum, I got my own place now''”
42 Finally on the issue of your level of culpability, whilst your intellectual impairment does not operate to reduce your culpability, your personal circumstances of deprivation, abuse and social disadvantage during your formative years do have some relevance in that regard.
43 Like your co-offender, you have pleaded guilty at the earliest opportunity. You accept responsibility for your criminal offending. The plea has saved the victims from the trauma of giving evidence and saved the community the expense associated with a criminal trial. You will be given credit for all these matters.
44 In balancing the various sentencing objectives, I am required to weigh your prospects for rehabilitation. They are not good. Dr Ball expresses this opinion: “Mr Maharaj’s rehabilitation and management in the community presents with a number of challenges. He has a history of rapid relapse into drug dependence in the face of mild life difficulties. His episodes of dysthymic mood, while eminently treatable, require him to engage meaningfully in treatment programs and comply with any prescribed medication”. Understandably, Dr Ball expresses the opinion that while you may have the capacity to rebuild your life, you will need intensive support and structured supervision when you return to live in the community.
45 Before I formally announce the sentence for each of you, I will explain why there will be a difference in your sentences.
46 Mr Chand, you have a second charge of armed robbery and that is an obvious reason for you being dealt with differently to Mr Maharaj. In addition, because of your prior history, specific deterrence assumes greater importance in your sentencing. Finally, there are the matters I have previously mentioned about Mr Maharaj’s personal circumstances that are relevant to his sentencing.
47 Mr Chand, will you stand, please. You will be convicted on the offences and sentenced as follows: Charge 1, convicted and sentenced to two years and nine months' imprisonment; Charge 2, convicted and sentenced to 15 months' imprisonment; Charge 3, convicted and sentenced to six months' imprisonment.
48 I order four months of the sentence on Charge 2 and two months of the sentence on Charge 3 be served cumulatively on each other and on the sentence imposed on Charge 1. This makes a total effective term of three years and three months. I fix a minimum term of two years and two months before you will be eligible for release on parole.
49 I make a declaration that you have served 180 days by way of pre-sentence detention.
50 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to an effective term of five years and three months with a minimum term of four years.
51 I make the compensation order and disposal order sought by the prosecution.
52 You can be seated, there.
53 Mr Maharaj. Please stand. Mr Maharaj, you will be convicted on Charge 1 and sentenced to a term of two years and four months' imprisonment. On Charge 3 you will be sentenced to six months' imprisonment. I order two months of that sentence be served cumulatively on the sentence on Charge 1. This makes a total effective sentence of two years and six months.
54 I order that you serve a minimum term of 18 months before you will be eligible for release on parole.
55 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to four years and six months with a minimum of three years and three months.
56 I make a declaration that you have served 150 days by way of pre-sentence detention.
57 I make the disposal order sought by the prosecution.
58 You can be seated, there.
59 Are there any other matters, Ms Yousuff, Mr Keating or Ms Shepherd?
60 MS YOUSUFF: No, Your Honour.
61 MR KEATING: No, thank you.
62 HIS HONOUR: The prisoners can be removed. Thank you. 10.30
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