Director of Public Prosecutions v Cherrill

[2020] VCC 1732

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00502

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER CHERRILL

---

JUDGE:	Her Honour Judge Todd
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2020
DATE OF SENTENCE:	28 October 2020
CASE MAY BE CITED AS:	DPP v Cherrill
MEDIUM NEUTRAL CITATION:	[2020] VCC 1732

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:   Plea of guilty – one charge of armed robbery – youthful offender – no prior convictions – early plea of guilty -  rehabilitation paramount consideration -  circumstances of COVID-19 pandemic.

Legislation Cited: s75A Crimes Act 1958 ; ss 5(4) to (4C), 37(C), 48CA Sentencing Act 1991.   

Cases Cited:  R v Mills [1998] 4 VR 235
Sentence:  Community Corrections Order of 24 months' duration

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Roper Ms E. Maguire	Office of Public Prosecutions
For the Defendant	Ms M. Walker	Melinda Walker Accredited Criminal Law Specialist

HER HONOUR:

Introduction

1       On a Tuesday night in September 2019, Mr Arpitkumar Patel was working as a delivery driver for the Tarneit Pizza Hut.  Sometime soon after 10 pm, Mr Patel collected an order to deliver to McDonald St[1] Tarneit, a short distance away.  When he arrived at the address he left the pizza and the drink that had been ordered in the car while he got out to get payment from the customers who were, for reasons of their own, waiting outside the house.  A short time later, Mr Patel returned to the Pizza Hut without payment and without the pizza and he reported what had happened.

[1] A pseudonym

2 Peter Cherrill, you have pleaded guilty to one charge of armed robbery contrary to s.75A of the Crimes Act 1958; a charge that carries a maximum penalty of 25 years' imprisonment.

Circumstances of the offending

3       The circumstances of your offending are set out in the summary of prosecution opening for plea dated 29 September 2020; that document is Exhibit 1 and forms part of these reasons.  I will summarise the facts giving rise to your offending here.

4       On Tuesday, 17 September 2019, you were with two friends, Todd Callahan[2] and Rafael Hanson[3] at Todd Callahan's house at 14 McDonald Street Tarneit.  I note that Mr Callahan and Mr Hanson were aged 17 and 18 years, respectively, at the time.  The three of you spent time together playing computer games and, at some stage during the evening, you became hungry.  You suggested that you order pizza.

[2] A pseudonym

[3] A pseudonym

5       At 9.56 pm you called Pizza Hut Tarneit and placed an order for two pizzas, garlic bread and a soft drink.  The value of the food, with delivery, was $79.60.  You placed the order but asked that it be delivered to 19 Said Parade Tarneit, an address that was a short walk away.  You, Mr Callahan and Mr Hanson then walked to 19 Said Parade to wait for the pizza delivery.  You stood outside the address.

6       At approximately 10.50 pm, Ms Sand, who lived at 19 Said Parade, returned home and saw you and your two friends standing near the front of her house.

7       

Five minutes later, at 10.55 pm, Mr Arpitkumar Patel arrived with your order.  Mr Patel parked his car, leaving the food inside it, and approached you,

Mr Callahan and Mr Hanson.  You told Mr Patel that the order was for 'Chris'.  Mr Patel asked for the cost of the delivery, which was $79.65.  You asked where the food was; Mr Patel told you it was still in the car.

8       You then produced a knife and pointed it at Mr Patel's chest and face, demanding both the pizza and any money in his possession.

9       As this was occurring, Mr Callahan and Mr Hanson found a way to take a pizza delivery bag from Mr Patel's car with the food and drink you had ordered in it.  Mr Callahan and Mr Hanson left by a thoroughfare, carrying pizza and soft drink and you followed them.

10      Mr Patel got back in his car and drove back to the Pizza Hut where he reported the matter to police.

11      You, Mr Callahan, and Mr Hanson all ran back to Mr Trajkovic's house where you ate and drank.  The pizza delivery bag was disposed of at some point.

12      Police investigated.

13      Mr Patel later identified your image on photo board as being the person that pointed the knife at him.

14      On 12 November 2019, so approximately two months later, police executed a search warrant at your home.  You were arrested and the police found the phone you used to order the pizza; you later admitted to police that that number belonged to and was used by you.

15      On the same day, you answered questions in an interview with police.  You admitted that you were at Mr  Callahan's address on the date of the offence and that you were there with Mr Callahan, Mr Hanson and two other people.  You denied making the phone call to order pizza and said that one of your associates had used your phone to make the order.  You told police that you had gone with your friends to the Said Parade address but felt that something bad may have been about to happen and therefore remained around the corner during these events.  You told police that once the events had occurred, you observed your friends running from the scene and that you followed immediately afterwards.

16      Mr Callahan and Mr Hanson were later charged with theft (only) and have been prosecuted in the Children's Court. 

17      After you were interviewed you were released pending summons.  You were charged on 27 December 2019.  A filing hearing was conducted in the Magistrates' Court on 24 January 2020 and on 25 March 2020 at the committal case conference you entered a plea of guilty to the charge of armed robbery; your case was transferred to the County Court for a plea hearing.  Your counsel submitted that you had indicated a willingness to plead guilty prior to that date, and I accept that.

Nature and gravity of the offending, culpability and responsibility

18      It was acknowledged by your counsel that this would have been a very terrifying experience for Mr Patel.  While it may seem that the theft of pizza and soft drink is trivial, the means by which you threatened Mr Patel were anything but.  He was a normal person trying to do an ordinary job.  He was entitled to do that without being physically threatened or intimidated.

19      Having said that, I accept that notwithstanding the presence of some rudimentary planning, such as the luring of the victim to a false address, the offending was relatively unplanned and unsophisticated.  Although threatened, Mr Patel was not physically injured.  Your nett gain was dinner and a soft drink.

Victim impact

20      No victim impact statement was tendered on the plea; Mr Patel was advised of his right to provide such a statement but decided not to.  Your counsel properly acknowledged, however, that it was a terrifying experience for him, and I take that into account.

Personal circumstances

21          

You were 18 at the time of the offending you turned 19 three days after on

20 September 2019.  You are now 20.

22      You currently reside in Hoppers Crossing with both your parents.  I am told your father is employed as a truck driver and your mother works at home.  You are the second youngest of seven siblings, and one of twin boys; four of your siblings reside in the family home.  You are fortunate to have the continued support of your family.  Your mother, sister, and a friend appeared at court at the plea hearing.

23      You left school after completing Year 10 at Hoppers Crossing Secondary College.  You struggled academically and in Year 11 you left school two weeks into the school year.  However, you gained work soon after leaving school and worked with your brother for four to five months doing roof tiling.  You then worked in roof plumbing, but the travel to and from that job was onerous and required you to rise at approximately 3.30 am.  You then had a role in a plumbing business with your uncle for a short period and then found yourself in your what is your chosen work:  working for a landscaping company, a position you kept for 12 months.  Unfortunately, a dispute over wages (you had just turned 18 at the time) meant that your time with that business came to an end.  That was in November 2018 and you have not had significant work since then.

24      You started drinking alcohol at approximately 17 years old and during the time after you finished with the landscaping work, this use escalated.  I was told that you would consume a slab of beer in a sitting and though this did not occur daily, it did occur certainly every weekend.  You also started using MDMA.  It was submitted that your excessive alcohol use and your drug use ceased in July this year.

25      You were brought up as a practising Christian and went to church with your Nan, but you have not been back to church since she passed away in 2016.

26      With respect to your mental health, no concerns have been recorded and you have received no previous treatment for mental health issues.  On the plea, and particularly in the light of your instructions about completing a community corrections order, an issue I will deal with further later in his reasons, I asked about whether there was anything to indicate current mental health issues.  Your counsel indicated that she had considered such issues but there was nothing of note.

27      Ms Walker, your counsel, notes that in your case there are a number of protective factors, such as the continued support of your family and your stable accommodation.

Applicability of section 5(2H) Sentencing Act 1991.

28 I note that although the prosecution originally submitted that your case attracted the provisions of s.5(2H) of the Sentencing Act 1991 on the basis that your offence was committed 'in company'; this position was not pressed on the plea.

No priors

29      At the time that this offence was committed you had no prior convictions.  At the time of the plea, you had a number of matters outstanding in the Magistrates' Court.  Although you were charged on summons for this offending, the other matters caused you to be placed on bail.  I do not take those matters into account, only to note that the alleged offences (which were noted in your council's submissions) occurred on either side in time of the current offending.  You participated in a youth bail program, however, no material was presented to me about that program; apparently it was not a success.

Sentencing considerations

Youth

30      You were 18 at the time of the offending so your case attracts the principles in R v Mills [1998] 4 VR 235 and associated cases.

Prospects of rehabilitation

31      Your rehabilitation, given your youth, is a paramount consideration for me in sentencing you.  You come from a large and apparently successful family.  Each of your siblings is either currently employed or studying.  They maintain their support of you.  You have a family home.

32      It was submitted, and I accept, that the binge drinking and drug taking that you were engaged in at the time of this offending has substantially ceased.  You have no prior convictions.  When you left school you were able to find employment, and even though some of these positions were not long lasting, you did gain important work experience and I trust in your ability to do so again in future.  The prosecution concedes prospects of rehabilitation are 'reasonable', given your compliance with bail and lack of subsequent offending.

33      It was submitted on your plea that you have goals that include stopping drinking, staying away from bad influences, and undertaking a trade that involves outdoor work.  You would like to do a TAFE course in horticulture.  That ambition appears entirely achievable, based in some experience of that industry, and within your reach.

Early plea

34      You demonstrated, in general, cooperation with the authorities and the court processes.  Your early plea of guilty has utilitarian benefit to the community and spares Mr Patel the inconvenience and possible further trauma associated with going to court cases.  I accept that your plea carries within it an acceptance of your responsibility for what happened and a degree of remorse.

Sentencing principles to be applied

35      I am obliged to sentence you so that I deter you specifically from offending again, that I deter others from offending through your sentence, that I denounce your conduct on behalf of the community, and I must consider just punishment and consider the protection of the community and your rehabilitation (particularly this in light of your youth).  On your plea, the prosecutor conceded that the protection of the community has limited relevance, given your lack of prior criminal history, and that specific deterrence has limited application for the same reasons.  The prosecutor also conceded that your prospects of rehabilitation are reasonable.

36      Regarding just punishment, I will impose a sentence that is relatively demanding on you.  It will be unpleasant.  It will be less unpleasant than going into custody, but it is in the community's interest that a person with your prospects of rehabilitation be given every opportunity of reform before that sentence of last resort is engaged.

37      This sentence must denounce your conduct.  On behalf of the community, I say to you through this sentence and clearly now, that someone like Mr Patel, doing an honest job in humble circumstances, does not deserve to be set upon by three young people for the sake of some pizza and a soft drink.  It is shabby, it is cowardly, and it is unacceptable behaviour.

38      I am obliged to take current sentencing practices into account.  I have done so, but your case turns on its individual facts and your individual circumstances.

Pandemic

39      As I deliver this sentence, Victoria is currently emerging from 'stage IV' restrictions.  Until recently, very little movement around the community has been allowed.  The situation is certainly improving but prisons are not accepting in-person visits from families or professionals still.  Out of cell times are likely to be disrupted and uncertain at best for the near future.  It is unlikely that this situation, even in the improved circumstances in Victoria, will change meaningfully in the near future.  It is always undesirable for a young person without prior criminal convictions to be committed to custody, but in the additionally stringent circumstances made necessary by the global pandemic, it is even less attractive given what is known about how prisoners are currently deprived of any face-to-face contact with their families.

Sentence

40 The prosecution conceded in submissions that a community corrections order is within range for your offending. While conceding the gravity of the offending, your counsel also submitted that a CCO was within range. I agree. I am also bound by the principle of parsimony, that principle is given expression in s.5(4) to (4C) of the Sentencing Act: a sentence requiring confinement of the offender cannot be imposed unless the court considers that the sentencing purposes cannot be met by another sentence.  Before I deprive you of your liberty, I must be satisfied that no other penalty is appropriate.  I am not so satisfied.  In all the circumstances of your case, I am satisfied that the purposes of sentencing can be met by the imposition of a community corrections order.

41 However, and overriding these principles, is the requirement in s.37(C) of the Sentencing Act.  Your consent is a precondition to my making such an order.  In written submissions filed before the hearing and tended on your plea, your counsel repeatedly conveyed your lack of consent to such an order.

42      Although I was satisfied that you had been carefully advised against this course, at the conclusion of the plea hearing on 9 October 2020, I nevertheless directed that you be assessed for a community corrections order; now having been to court and your family being apprised of the situation, I hoped that you may consider your instructions.

43      You were then referred for a community corrections assessment in the afternoon of the day of your plea.  I also asked that you be assessed for a Youth  Justice detention order.  That assessment takes much longer to prepare so your case was adjourned for several weeks to await that latter report.

44      On the day of the plea, you were assessed for suitability for community correction order.  Predictably, you were found unsuitable because, at least at that stage, you were still of the view that you did not want to be placed on such an order and that you would not consent to the imposition of such an order.  In those circumstances, the only option was to await your assessment for suitability for detention in a youth facility.

45      While I awaited the provision of that report, by email dated 19 October 2020, your lawyer communicated with the prosecution and with the court that you had had a change of heart about not committing yourself to a community corrections order and that you would consent to the making of such an order.  Finally, the prosecution, the court, your counsel, and you were all in agreement about the appropriate disposition in this case.

46      You were charged on summons and that being so, there is no pre-sentence detention in your case.

47 Pursuant to s.6AAA of the Sentencing Act, I am obliged to note the sentence that I would have imposed had you not pleaded guilty, but had you been found guilty after a trial.  It is an unusually artificial exercise in your case.  But doing my best, I say that had you been found guilty after a trial, I would have imposed a term of imprisonment of eight months with a CCO of two years.  Given the disposition I am about to arrive at, it is possibly unnecessary for me to have made such a declaration.

Disposition

48      On the charge of armed robbery, you are convicted and sentenced to a community corrections order of 24 months' duration.  You need to listen carefully to what I am about to say because at the end of it you will be asked whether you consent to the making of such an order.  As I have already said, your consent is the final pillar for the making of an order like this; you need to take it seriously.

49      You will first be subject to the 'standard conditions' of a CCO.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 24 month period.  If you do, you will be brought back to court before me and resentenced for this offence.  Everything is back on the table on that point, and I can tell you now, that absent very powerful reasons, you should expect that any further offending will involve your committal to immediate custody.  And depending on the timing of all that, you would probably be in adult gaol.

50      You must report to the Werribee Community Corrections Service at 87 Synnot Street, Werribee - you will get all of this in written form as well - within two days of today by telephone.

51      You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.

52      It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of the community corrections order.  You are not able to leave the State of Victoria without their prior permission.

Special conditions:

53      You must report for supervision with your case manager as directed.

54      You must submit to assessment and treatment for alcohol and drug dependence.

55 And I require you to perform 50 hours of unpaid community work over the term of this order. Pursuant to s.48CA of the Sentencing Act, I direct that time spent in treatment and rehabilitation programs be credited towards those hours.

56      I also require you to participate in something called judicial monitoring.  That means you have to come back to court in a month and then at regular intervals to tell me how your order is going.  I get to hear from Corrections, from their perspective.  You need to appear for judicial monitoring at 9.30 am on 27 November 2020.  On that date, I will be given a report that will account for how you have gone on your order up until then. 

57      So, that is the disposition.  Ms Maguire, are there any ancillary orders sought?

58      MS MAGUIRE:  No, Your Honour. 

59      HER HONOUR:  All right.  In that case then, I will get - Ms Walker, would you like to have a copy of the order and go through it with Mr Cherrill and

- - -

60      MS WALKER:  I think Your Honour's been very thorough.

61      HER HONOUR:  All right. 

62      MS WALKER:  But could I just indicate this one thing?

63      HER HONOUR:  Yes.

64      MS WALKER:  Mr Cherrill's required to attend at the Melbourne Magistrates' Court on the 25th. 

65      HER HONOUR:  I see.

66      MS WALKER:  Is it possible to have that judicial monitoring on the 25th and then that will just require him one trip into the city?

67      HER HONOUR:  One less trip, I understand.  Let us see what we can do. 

68      MS WALKER:  And that is to dispose of all of the other matters.

69      HER HONOUR:  Good.

70      MS WALKER:  And I can indicate to the court, to which he has already had an indication that it is intended a community corrections order to run alongside this on.

71      HER HONOUR:  All right.  Well, that is real progress, is it not?  So, the 25th is also fine.  Is 9.30 going to work - - -

72      MS WALKER:  That would be great.

73      HER HONOUR:  - - - with his other court commitments?

74      MS WALKER:  Yes.

75      HER HONOUR:  All right.  So, in that case, just adjusting that order, you are required to attend at this court, Mr Cherrill, on the same date you go to the Magistrates' Court.

76      OFFENDER:  Yeah.

77      HER HONOUR:  So, you will check in with me first and then go and be dealt with in the Magistrates' Court, and I will see how you are going on this order.  Is there anything else, Ms Walker?

78      MS WALKER:  I was just going to ask that the judicial monitoring report be provided to me also - - -

79      HER HONOUR:  Yes, of course.

80      MS WALKER:  - - - if that was possible, prior to the hearing?

81      HER HONOUR:  Yes.

82      MS WALKER:  Thank you. 

83      HER HONOUR:  And I am not sure what Mr Cherrill's arrangements are for representation that day, but if you could be here, it would be terrific, but if you are not here, I run these things quite informally and will speak to Mr Cherrill directly.

84      MS WALKER:  Yes.  Well, we will see how we go.  I should be able to be here and then we can go straight across the road.  I have to stagger everybody anyway, so he could be 10 o'clock  and that would be great.

85      HER HONOUR:  Yes, all right.  Excuse me, Ms Maguire, is there anything from your perspective before - are we right?

86      MS MAGUIRE:  No, Your Honour.  As the court pleases.

87      HER HONOUR:  We have been doing these on screen, so we have old-fashioned business of actually signing the order.  So, we will do that. 

88      MS WALKER:  I will just leave the Bar table, Your Honour?

89      HER HONOUR:  Of course.  I thank the parties for their assistance.

- - -