Director of Public Prosecutions v Church

[2020] VCC 1048

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00625

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CHURCH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2020
DATE OF SENTENCE:	16 July 2020
CASE MAY BE CITED AS:	DPP v Church
MEDIUM NEUTRAL CITATION:	[2020] VCC 1048

REASONS FOR SENTENCE

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Subject:

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Paull	Adrian Paull Lawyers

HIS HONOUR:

1Daniel Church, you were born on 9 February 1981.  In the days following your 39th birthday this year, your sister noticed a deterioration in your mental stability; you were behaving erratically.  So much so that on 11 February 2020, around 9.30 am, she contacted Barwon Health Psychiatric Services.  She was advised to call 000, which she did later in the morning. 

2Ultimately, the police arrived at your sister's address, where you were living.  When you saw the police, you took off.  The reasons for that were that earlier on that morning, you had committed an armed robbery at the nearby petrol station at Leopold. 

3You drove there at around 6 am with clothing that effectively was a disguise.  You had a small Stanley knife on a lanyard but, more concerningly, you had a large knife which you brandished menacingly at the three staff members, aggressively demanding cash and cigarettes.  You were handed $162 and three packets of cigarettes before a staff member pushed a duress alarm.  This triggered a phone to ring, and you took off.

4You drop the cash and cigarettes in your escape.  You drove home and behaved in such a manner that your sister called for mental health assistance as I have described. 

5This frightening armed robbery has had a significant impact on the store manager.  She wrote in her victim impact statement that she is overwhelmed.  She has severe anxiety which contributes to sleepless nights, which continues.  Since the robbery, she has lost her confidence in everything she does, she is on medication just to help her get through the day; she has been disconnected to family and friends; she has been diagnosed with post-traumatic stress disorder; no small matter.  That has opened, she says, a whole new perspective and a very real challenge in dealing with life. 

6She has difficulty in concentrating and simple things seem the hardest.  She cannot drive past her workplace without shaking in fear.  In fact, she cannot face her workplace, and without that income, she is under financial pressure.  She concludes, 'I just so desperately want my life back, the life I had before he took it away'.

7She sees a psychologist, whose report I have read and have factored into the assessment of the impact on the victim.  The other victims did not write victim impact statements, but there is no doubt violent crimes involving deadly weapons can and do leave a deep psychological scar. 

8This example of armed robbery is serious.  You were, in effect, disguised, you had two weapons and picked a soft target.  Those in service stations, convenience store and the like, that necessarily have to deal with cash must be protected by armed offenders.  Courts must stand firm in imposing stern punishment to those that commit armed robberies on such targets.

9Your counsel described the armed robbery as being unsophisticated and relatively unplanned, and there is some basis for that.  It was inept and, in effect, you got nothing for these frightening efforts.  While you were behaving erratically, there is nothing the way of frank mental illness that was relied upon to diminish your moral culpability.  Indeed, you moral culpability is high.  You were affected by the drug ice at the time. 

10Your explanation for your erratic behaviour and overall stress is bound up in your personal circumstances at the time.  To understand those matters, I need to outline the full picture of your personal circumstances. 

11Your upbringing was in northern New South Wales.  You are one of four children.  You are particular close to your sister, who I had mentioned and will refer to again shortly.  Your parent's relationship was turbulent, you witnessed violence towards your mother.  You moved out at age 14 and lived with friends.  All this did not significantly impact upon your education and you were able to pass Year 12. 

12You moved from school to labouring, mainly as a roadworker in that field of employment.  After a time working in this field, you decided to travel around Australia with your long-term girlfriend.  Another close friend also came travelling with you.  You were working as a fruit pick in northeast Victoria when, after a drunken night out, you foolishly decided to drive with your close male friend and two international travellers as passengers in the car.

13Your hoon-ish behaviour saw police trying to intercept you.  You drove off at high speed, lost control and hit a tree; your three passengers were killed.  You were charged with and ultimately pleaded guilty to three charges of culpable driving.  Your original sentence of 10 years with a minimum of seven was increased by the Court of Appeal to 12 years with a minimum of nine, following a successful appeal by the Director of Public Prosecutions. 

14You were released on parole but then were required to do a further 10 months for breaching parole by drug use.  You then completed you parole without further problem.  You moved up to Queensland, establishing a concreting business and ultimately formed a relationship. 

15You had sometime earlier reconnected with your father, who was also living in Queensland.  You and your partner had a daughter, now aged three.  Tragically, in November 2018, your son was born but died within hours of birth. 

16You described your partner as having problems with alcohol and methylamphetamines.  However, what brought your relationship to an end was that she and your father had an affair.  I understand they are still together and there are difficulties with you connecting with your three-year-old. 

17You remained in Queensland for a time but took to using ice yourself.  Your sister came to learn of this sorry situation and came to Queensland and invited you back to live with her outside Geelong and sort yourself out.  You had met a young woman and you both came to live with your sister in the outskirts of Geelong.

18You were on all accounts in 2019 doing well; your partner became pregnant, you established a concerting business which was successful enough, and were fit and drug-free.  You came to learn that an employee had caused serious financial problems for your business; you were looking at large debts and the business was in peril.  This overwhelmed you and you took to using ice and drinking heavily, particularly so around your birthday in February 2020; in this state, you committed the armed robbery.

19In describing your mental health at the time, you said to the psychologist,
Mr Cummins, the following:

'Well, just after I'd had conclusive proof that Paula and my dad were together, I needed to calm down and I had myself made a patient overnight, by 24 hours in the psych ward at the Gold Coast, and that's what I should've done once I found that the $25,000 had been stolen.  I should've said that I wanted to be voluntary and admitted to a psych ward.  The only time I've had mental health treatment is now that I'm back in gaol, although when I served the previous 12 years, I did get a bit of psychological treatment.'

20You also realised that you had not properly dealt with the psychological trauma of the driving in the way that you did that killed the three people.  Your sister wrote about this as well, she said in a letter to the court:

'I also believe Daniel's troubles stem from previous trauma experienced at the age of 21, which I understand is no excuse, but a contributing factor.  Daniel never received professional help following this trauma.  I believe this is a major factor in his current situation.' 

21She went on:

'Daniel always struggled to take the next step to ask for and receive professional help which, in my opinion, would help immensely.'

22You current partner expressed the same sentiments in her letter to the court. 

23I have considered the whole report of Mr Cummins, in particular, what he wrote form paragraphs 42 and into 43 regarding conglomeration of life-affecting and traumatic experiences that you have endured, which had led Mr Cummins to the opinion that you are burdened with complex post-traumatic stress disorder.  He wrote of you, your need for ongoing mental health treatment.  But importantly, he noted:

'Somewhat remarkably, he is now being provided with ongoing mental health treatment on remand'.

24For my part, I hope this continues. 

25Your rehabilitation efforts after release from your long gaol sentence, and especially since you came to Victoria, give me some confidence that you can again rehabilitate.  Your fall back into drug use was only days before the armed robbery and connected to your reaction to the financial stress following the actions of your employee. 

26Your sister and partner both spoke of your dedication to family life and health before your sudden deterioration.  This violent offending was out of character and, so long as you remain drug-free, is unlikely to be repeated.

27You are remorseful and spoke of your understanding of the likely impact on the victims.  Mr Cummins wrote - and this was before you had the victim impact statements - he wrote that you expressed shame, regret and remorse concerning your offending.  You spontaneously spoke about victim empathy and said it was inevitable that the victims of this offending would have been psychologically traumatised. 

28He went on that you acknowledged it is inevitable that you will be required to serve a sentence of some duration concerning the armed robbery.  You stated it would be more difficult for you to serve this sentence because you now have a three-month-old daughter, now a little older, but nonetheless it is a burden for you.  I have today received your letter of apology to the victim; you expressed genuine concern and remorse. 

29Your plea of guilty is of great value now that jury trials have been suspended.  The sentence will be less than it otherwise would have been.  The plea of guilty is another expression or remorse and recognition that the victims ought not have to undergo the added trauma of a trial.

30The COVID-19 pandemic makes prison life much harder.  You do not have visits from your partner and child or your sister or anyone.  There are a range of impacts on prison routines, including limited education and educational and other programs and time out of cells  I have factored this into the overall sentencing synthesis.  In practical terms, it means the sentence is lower than it would otherwise be and lower than the array of sentences that might have been imposed in previous times 

31While your personal circumstances reveal important mitigatory matters and give confidence that you can reform, I must nonetheless ensure that my sentence properly denounces your frightening and violent crime.  Practical denunciation means that you must be appropriate punished by a term of imprisonment.  That, together, that denunciation together with the significant weight that I must give to general deterrence means that the term of imprisonment must be for longer than would allow for any combined imprisonment and community corrections order. 

32I will allow for a period of potential parole.  The family support, your maturity and your previous experience on parole again gives me confidence that your rehabilitation on parole and thereafter will likely be permanent.  But Mr Church, it is entirely up to you. 

33Doing the best I can for a charge of armed robbery, I will sentence you to a term of imprisonment for four years.  I fix a minimum non-parole period of two years.  You have already served 155 days in custody, this figure having been reckoned, I declare that it is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already done 155 days of the sentence I have just imposed. 

34Had you pleaded not guilty to these matter and been found guilty by a jury, I would have imposed a sentence of six years, with a minimum of four.  Are there any other orders, Mr Moore?

35MR MOORE:  Your Honour, just there is one amendment for the pre-sentence detention, the calculation should be one, an extra day of - it should read 156 days including today. 

36HIS HONOUR:  Thank you.  Well, I make that adjustment in respect of the time you spent in custody, which is part of the sentence, it is 156 days and that will be on the order.  Nothing else?

37MR MOORE:  No, Your Honour.

38HIS HONOUR:  Mr Paull?

39MR PAULL:  No, Your Honour.

40HIS HONOUR:  Thank you.

41MR PAULL:  (Indistinct words).

42MR MOORE:  There is a disposal order for the Stanley knife.

43HIS HONOUR:  Yes.  All right, well, I will make an order relating to the disposal of the Stanley knife. 

44MR MOORE:  Yes, thank you.

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