Director of Public Prosecutions v Christou&Anor

[2013] VCC 194

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01058 and CR-13-01059

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON CHRISTOU
PAUL NELSON

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2013 and 2 October 2013
DATE OF SENTENCE:	28 November 2013
CASE MAY BE CITED AS:	DPP v Christou&Anor
MEDIUM NEUTRAL CITATION:	[2013] VCC 1941

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Podmore	Office of Public Prosecutions
For Accused Christou	Mr S. Payne	Victroia Legal Aid
For Accused Nelson	Mr J. Saunders	Valos Black & Associates

HIS HONOUR:

1You, Jason Christou and Paul Nelson, have each pleaded guilty before me to one count of armed robbery.  These crimes arise out of circumstances which were opened by Mr Podmore this morning and on the previous occasion when Mr Nelson pleaded guilty.  In broad compass they concern events on Monday 31 December 2012 when in the early hours of the morning the victim was riding his bike along a bike track in Middle Park.  He stopped to go to the toilet, at which time, unhappily, each of you and a female partner friend were walking in the same area.  She stopped to micturate at the same place at which time she clearly observed Mr Smith and in due course a conversation ensued between you two and he.

2At that time you, Christou, pulled a knife from your pants and threatened him with it.  You told him to empty his pockets and at that time you, Nelson, were making threatening statements.  Each of you then effectively searched him, took his property, including his iPhone, and in due course then left the scene.  Fortuitously and unbeknownst to you, of course, the victim's phone was able to be tracked by the police, and it and the knife were located in your presence, buried beneath some loose soil.  Both of you were interviewed at the police station that day and you both denied the offending telling the police that the victim had given you the phone, that no knife had been produced, which was clearly untrue, as your plea indicates today.

3A victim impact statement has been tendered in the matter and indeed was read to the court this morning by Mr Podmore who appears to prosecute the matter.  It is clear that each of you was very lucky on the occasion, not understanding as you did that your victim in fact was a boxing champion, but fortunately from your point of view had an injured leg and was unable to, and unwilling in the circumstances, and perhaps wisely so, to take up the fight, but clearly your actions have had a significant impact upon him as his victim impact statement eloquently discloses.

4Of course, as has been pointed out by each your counsel, Mr Saunders on the previous occasion and Mr Nelson's plea today, in the documents very appropriately and tendered by Mr Payne for Mr Christou, you have each pleaded guilty and you are each entitled to have that fact taken in to account in your favour and I do so.  The community has, by your pleas, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you each been found guilty after a trial.

5Further, I take it in to account in each of your favours that time at which you indicated the intention to plead guilty to these charges, clearly Mr Christou's occurred at a later time but ultimately it seems to me that is the point of distinction, without a significant difference in the circumstances.  You were each apprehended quickly and whilst you made no ready admissions to your partner in crime, ultimately by your pleas you have done so.  In the circumstances I accept that in each of your cases your plea does indicate remorse for your actions.

6

With respect to you, Mr Nelson, I have sought and obtained a pre-sentence report in light of submissions made on a previous occasion, that is marked as Exhibit 2, and that report sets out, in combination with

Mr Saunders' submissions your personal circumstances, the more salient aspects of which are set out under the heading social, history and background.  Your parents separated when you were two and you remained residing with your mother and sister.  Your father remarried and he had grown apart over the years.  Your mother and sister and you have had a close relationship over a very lengthy period, indeed your mother continues to retain that close bond with you.

7You first moved out of home at the age of 19, although spent some periods of time back living with your mother until you were aged 23 when you left home permanently.  You are transient with respect to your housing and residing in various boarding houses.  You live in your current accommodation in Port Melbourne with your partner of three years, although you do not have a broad circle of friends.  With respect to your health history I note that you are prescribed benzodiazepines for your anxiety symptoms and there is of course a letter from Dr Elizabeth Leader which Mr Saunders tenders this morning outlining your current prescription.

8I do note the reluctance you expressed with respect to psychological counselling, although of course it will be a very significant part of your Community Corrections Order and I know that you understand, as Mr Saunders has explained to you, that you have no choice as to whether or not you engage in counselling under a Community Corrections Order, it is an order of the court, and to be treated by you as such.  Any failure of you to attend those counselling sessions will be regarded as a breach of that order and of course will result in you being brought back to court and one of those sentencing alternatives left open to me will be of course gaol.  One trusts that will not be the case but it serves to underline that you have no choice with respect to these matters, it is simply an obligation which you must comply with.

9With respect to your education and employment history, you commenced your schooling at Ferntree Gully Primary School and you then completed your education at Elwood Secondary College in 1992.  Clearly you have occasional work in the building industry but in the end it is your drug addiction which has bedevilled your life for a considerable period and it is that to which of course this Community Corrections Order is focused.  It is very much up to you at this stage of your life to make some very significant choices about how you choose to live the rest of your life, noting of course that you have undertaken a methadone program over a period of years, but it seems ultimately that the time is rapidly approaching when you need to seriously assess what it is that you are going to do with respect to your future life.  One trusts that the various conditions ordered under this Community Corrections Order will serve to provide a basis from which you can lead a more productive life in every relevant sense.

10Clearly you have also admitted to prior convictions.  You first appeared in court at 1992 at the age of 18 and then drug possession charges in 1992, 1996 and 1998 and property related matters in 2002 and 2006.  Noting that you did complete a Community-based Order successfully in 2006.

11With respect to you, Mr Christou, I have been provided with a very helpful and extensive range of reports and I particularly highlight the psychological report of Dr Julie Janev, of 3 November 2012, which sets out a most helpful analysis with respect to your situation and of course the report of the Central Melbourne Psychology Organisation and particularly the one authored by Mr Ball, who is well known in the course and regularly provides reports and, as usual, this is a most helpful and insightful report.  In particular I do note his submission, or his view, that you are likely to have ongoing difficulties rebuilding your life and essential to your management in the community is support, intensive and structured treatment, supervision and monitoring.

"Such support and supervision in the community would be best afforded under conditional release such as a parole order or similar conditional release."

12Indeed it is that recommendation which I have sought to act upon in a significant measure by the ordering of a longer than normal parole period in your case. I also have the advantage of ARBIAS report, which I have marked as an exhibit, and I note particularly the heading "Etyology and target group determination under the Disability Act 2006" where the author there says:

"It is not possible to be certain whether he has substance related acquired brain injury.  Despite the reported history of physical assault to the head the available evidence suggests the severity of the traumatic brain injury (if any) would be mild at most.  On balance his cognitive impairment is most likely due to his history of epilepsy with additional contribution from ongoing benzodiazepine use."

13In addition to those matters, as I say, I have the very helpful submissions that have been prepared by your counsel, Mr Payne.  I think it appropriate to refer to those submissions which helpfully summarise the matters which are set out in those reports to which I have already referred with respect to your personal history and your circumstances.  As noted you are now 31 years of age, both parents are Macedonian, your mother was born in Macedonia but your father was born in Australia and you have an older sister.  You came from a good family.  Your father works as a truck driver now in the smelting industry.  Your mother worked as an accountant but has now retired and your sister works as a nurse.

14It is your recollection your parents were arguing with each other at home when you were about 13 and then as a consequence apparently your parents separated.  You then began living with your mother and at about that time began taking drugs.  I recall reading in an earlier report that you were very unhappy with the separation and it was as a consequence of that that you began taking drugs and by the age of 18 you were using drugs heavily and ultimately you very sadly ended up living on the streets of Melbourne, homeless, as your parents had little to do with you, given your addiction to drugs and the lifestyle you were leading.  As a result you became effectively estranged from your family although you moved back to live with your mother upon your release from gaol in October 2010.

15You have apparently recently reconnected with your sister and your father and you receive visits from them.  That is a matter of some significance, in my view, and one trusts that it will continue.  Your education was limited, you attended secondary school in Mill Park where you completed Year 9.  You have had a number of significant relationships, you are currently single and have no children.

16Your work history of course is very much a product of your drug addiction and you have occasional employment.  You completed two years of an apprenticeship, but ultimately, as I say, that was in the carpentry/building industry, but ultimately of course it was your drug addiction which prevented you acquiring any serious employment history.  Your history of drug abuse and homelessness is set out appropriately by Mr Payne at Paragraphs 36 - 45 and as I say a very sad reality of your life is that you left home at the age of 18 having at that stage being largely homeless and living on the streets of Melbourne.

17

With respect to your offending, you have a significant criminal history dating back to 2001, and that history does include some matters of violence as

Mr Payne points out.  Indeed there is subsequent offending which I was told about this morning and on 20 September 2013 you were sentenced in the Magistrates' Court to nine months imprisonment with respect to matters that have been brought to my attention in the course of the morning, in the documentary materials.

18I also note the submissions made with respect to the applicability of the case of Verdins, in your case, and the fact that Mr Payne relies upon Mr Ball's report in that regard, and a quote from p.6, where Mr Ball says:

"There is a clear nexus between his offending behaviour, lifestyle, dull intellect and acquired brain injury.  The effects of his brain injury were operating during his current offences and affected his judgment and many aspects of his cognitive functioning, particularly his memory."

19The submission as a result of that, various Paragraphs 1, 3, 4 and ultimately 6 of Verdins are alive in your case, and of course in the consequence I will sensibly moderate the applicability of general and specific deterrence as I am obliged under the authority.

20Further, you have utilised the passing of the time since your remand in December 2012 to effect your rehabilitation in a significant way and both of you in that sense, that is you Mr Nelson, and Mr Christou, have utilised the time since your arrest with respect to this matter to effect your rehabilitation in part, as best you are able, and each of you deserves credit for that.  Of course no doubt the anxiety attendant upon the passing of that time is also a matter that is appropriate to take in to account on each of your behalves.

21I am on balance satisfied the chances of each of your rehabilitation is reasonably good, and given the matters that are put before me today, notwithstanding the extensive drug history of each of you, and also the offending.  One trusts that indeed this case has served as a point at which your lives will change for the better and you will take advantage, in your case Mr Nelson, of the Community Corrections Order, which is an onerous, in the circumstances, given the length of time for which it will apply, and of course Mr Christou when you are released there will be a lengthy parole period and one trusts that both of you will be able to utilise whatever resources are made available to you in consequence of those matters, to your advantage and assist you in dealing with your drug addiction and hopefully providing the solid platform on which you can move forward in your lives without being ruled by drugs.

22Of course as well as matters personal to each of you, to which I have referred, including the question of rehabilitation, I must take in to account such matters as deterrence and especially general deterrence, which is always of importance in a case such as this, involving as it does the gratuitous infliction of violence and the apprehension of significant violence, given the production of the knife.  Specific deterrence is also of some importance given the range and nature of each of your prior convictions and I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest, notwithstanding the range and significance of your prior convictions and your past addiction to drugs on the basis that each of you has made some strong resolution to rid yourself, or at least come to terms with your addiction to drugs.

23I have already referred to the matter of delay, which is not considerable, but no doubt has some significance in your lives, and the role it plays in sentencing.

24With respect to you, Mr Christou, application has been made for an intimate forensic sample to be taken from you and you have not objected to this and I am satisfied that it is in the interests of justice, having regard to your prior convictions and the seriousness of your offending in the circumstances that I order an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor, or nurse, or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth and although you have consented I must inform you that if you change your mind the police may use reasonable force to enable that procedure to take place.

25Yes gentlemen, if you would stand please.

26With respect to you, Mr Nelson, I propose to order a Community Corrections Order in this matter.  That order will last for three years and commences on 28 November and ends on 27 November.  The mandatory terms that apply to all Community Corrections Order are you must not commit another offence to which you could be imprisoned during that time that the order is in force.  You must comply with any obligation or requirements prescribed by Regulation 17 of the Sentencing Regulations.  You must report to and receive visits from the secretary.  You must report to the Community Corrections Centre within two clear working days of the order starting.  You must let a Community Corrections Officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first getting permission to do so from the secretary or delegate.  You must obey all lawful directions from and directions of the secretary.

27In addition to those conditions you must perform 300 hours of unpaid community work over a three year period as directed by the regional manager.  If you fail to comply with this order the secretary to the Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.  You must be under the supervision of a Community Corrections Officer for a period of three years and you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.  You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological, and psychiatric, in a hospital or residential facility as directed by the regional manager.  Do you understand the effect and conditions of the order and do you consent to it being made?

28OFFENDER NELSON:  Yes.

29HIS HONOUR:  Very well I will sign that order.  Mr Saunders can attend my associate and you can sign that document as well, thank you.  Yes, well of course Mr Nelson, as I have said and I do not need to repeat, but I will once again, it is no easy thing, three years with somebody on your back for the next three years, given your history.  I hope we do not see each other here again but it is going to require a fair degree of resolve from you.  Remember, the order that you get under the Community Corrections Order, there is no choice.  It is amazing how many people think that they can just simply not attend.  The real test will come next week and next month and the year after that, but you know all that, you have been through that before. 

30

As I say it is now getting to a very serious end in the sense that the sad reality of the position is that long custodial sentences are the only other thing that is now available to you if you do default.  So I am sure that that will galvanise you if anything needs to, but I am sure ultimately it will be a matter that you will resolve yourself.  Thank you, you can be seated now

Mr Nelson.

31Mr Christou, you are convicted and sentenced as follows. On Count 1, three years imprisonment. That results in an effective sentence of three years and I direct that you serve a minimum term of 15 months before becoming eligible for parole. As I say, that lengthy parole period is made on the basis of the material that has been made available to you me on your behalf. As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have already spent in custody is 332 days and I further order that the sentence that I have ordered today be served concurrent with any other sentence that you are currently serving.  I also direct, pursuant to the provisions of s.6AAA, had you not pleaded guilty I would have ordered a head sentence of four years and a non-parole period of three years.

32Thank you, you can be seated now Mr Christou.  Is that the matter?

33MR PODMORE:  Your Honour just two points, one is does there need to be some reference, Your Honour, to the disposal order made previously in respect of Mr Nelson?

34HIS HONOUR:  Have I signed that order?

35MR PODMORE:  The order has been signed and returned.

36

HIS HONOUR:  Thank you for drawing that to my attention,

Mr Podmore.  I have also made the disposal order sought by the prosecution and not resisted by counsel on behalf of Mr Nelson.

37MR PODMORE:  Just one further matter, Your Honour, and that is in relation to the application for the 464 order in respect of Mr Nelson for saliva sample ‑ ‑ ‑

38HIS HONOUR:  Was there one?  I do not have it.

39MR PODMORE:  I am told that it was sent through, although originally I think, and that was in respect of the previous appearance for Mr Nelson, and we don't have another copy of it now.

40HIS HONOUR:  You do?

41MR PODMORE:  No we do not Your Honour.

42HIS HONOUR:  All right, Mr Saunders is that opposed?

43MR SAUNDERS:  No it is not, Your Honour, I have a note of the application as being made but I don't have a note as to whether Your Honour signed them on the occasion and handed them back or not.

44HIS HONOUR:  I'll sign that order when it's produced to me in chambers, in view of the circumstances, and Mr Saunders you'll obviously explain to Mr Nelson that if he fails to willingly supply the saliva sample then compunction or force can be ‑ ‑ ‑

45MR SAUNDERS:  Yes I'll make the sub-s.(9) points to him Your Honour.

46HIS HONOUR:  Thank you very much, Mr Saunders, in the circumstances.  All right, I think Mr Nelson you can then step forward.  Officer is that all right from your point of view?  Yes, thank you.  Mr Christou obviously you have got to serve the balance of the Magistrates' Court sentence, but I expect the sentence I have ordered today will largely - I don't understand that there will be much, if any, addition to that which the magistrate ordered, but what you do have is a lengthy parole period.  You understand parole and you understand that whatever the orders of the parole board are that the sanctions are if you don't live up to it you're going to have another slightly excess of 18 months that you have got looking at gaol time.  That'll be your choice, ultimately, and good luck in making the right choice.  All right, thank you, I think that concludes the matter.

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