Director of Public Prosecutions v Coleman

[2014] VCC 198

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

AT WODONGA
CRIMINAL JURISDICTION

CR-13-02131

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN COLEMAN

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Wodonga
DATE OF HEARING:	27 and 28 February 2014
DATE OF SENTENCE:	3 March 2014
CASE MAY BE CITED AS:	DPP v Coleman
MEDIUM NEUTRAL CITATION:	[2014] VCC 198

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. S. Lynch	Office of Public Prosecutions
For the Offender	Mr C. F. Morgan	Mario Vaccaro

HIS HONOUR:

1Brendan Coleman, you have pleaded guilty to one charge of handling stolen goods, one charge of armed robbery, and one charge of using a firearm whilst prohibited.

2The prosecutor opened the circumstances of the offending by reading from a written "Summary of Prosecution Opening."  The armed robbery occurred on 7 July 2013 at about 7 pm.  It was on a bottle shop in Beechworth Road, Wodonga.  You rode your motor bike from your home in West Albury to near the bottle shop.  You entered the shop wearing a balaclava and carrying a backpack.  You produced a single-barrel shotgun at the sales assistant, initially pointing it towards his head, and demanded money.  You obtained about $300.   You also took the complainant's phone to avoid him calling the police.

3You were arrested on 11 July at your home.  The shotgun, cartridges, clothing worn by you in the armed robbery and the complainant's mobile phone were located at your premises.  Some work boots were also found.  These boots along with an air compressor, the shotgun and cartridges were stolen during a burglary in Myrtleford on 19 June.  These items are the subject of the charge of handling.

4When interviewed you made admissions.  Your counsel submitted that I should accept your answers as remarkably frank.  There was no argument on the contrary, and I will act on the basis of the accuracy of your answers. 

5You said you committed the armed robbery because you needed drugs and were trying to impress a girl.  You said the gun was not loaded.  You admitted pointing the gun at the complainant's face, "Probably a couple of metres away."  I was shown a recording of the event depicting different views.  You said you had never had a gun before and thought it would be "pretty cool" but now realised it was a "stupid idea."

6I suspected that your comments at Question 103-104 were a reference to an earlier attempted armed robbery at the same premises.  At the end of May 2013 I sentenced two young offenders for attempted armed robbery and associated offending concerning a liquor store in Beechworth Road.  At first I thought it was the same store.  You seemed to motion in agreement when I sought an explanation concerning your answer, however, your mother interjected, saying it was not the same premises.  It seems she is right. 

7Your counsel told me that you are aware of what seems to be some crime similar to yours but did not learn of the penalty until after your crime.  In the end I think your knowledge of a similar crime having been before the courts shortly before your crime is not of much significance and propose to disregard this matter rather than to try and finesse what it might mean.

8I need to be particularly careful to avoid double punishment concerning Charges 2 and 3.  The gun you used in the armed robbery is the same gun as you used in Charge 3.  The additional feature is that you were a "prohibited person" at the time.  In the circumstances I intend to impose an aggregate sentence on Charges 2 and 3.  My concern is to yield an appropriate sentence for this conduct, paying regard to the fact that you were a "prohibited person."   Of course the gun is also one of the items you handled, as charged in Charge 1. 

9To your credit, you have consented to me making a disposal order, the prosecution having agreed to delete some personal clothing, an order for the retention of a forensic sample and a compensation order.  My reasons for making a retention order will appear in that order. 

10A victim impact statement was tendered.  The complainant has suffered considerably, as one would expect, from your conduct. 

11You have a criminal history spanning a little over a decade.  You were placed on a Community Corrections Order on 24 May 2013.  The offending included a charge of possessing a controlled weapon.  The current offending breaches that order. 

12You have committed crimes of violence and dishonesty.  In 2004 in Albury you were placed on a supervision order and received a three-month suspended term of imprisonment for affray and assault occasioning actual bodily harm. Your counsel noted your youth at this time and told me that you were acting in some accessorial capacity with your mother's partner in a hotel brawl.  He relied upon this as part of his submission concerning the lack of "constructive" paternal or indeed parental guidance. 

13In 2003 in Wodonga you were placed on a CBO for possession a controlled weapon.  There was additional offending also.  You breached this order and seemed to have been convicted and discharged on the charge of possessing the controlled weapon. 

14In 2006 in the Melbourne County Court you were convicted for intentionally causing injury and armed robbery and sentenced to 18 months' imprisonment wholly suspended in combination with a CBO.  You breached this order, but the suspended sentence was further suspended and the CBO varied.  You breached the CBO again and the order was confirmed.

15The armed robbery and intentionally causing injury for which you were convicted in the Melbourne County Court in 2006 were serious, the penalty was lenient.  Judge Hampel imposed the sentence.  She emphasised your youth and what she described as "a remarkable difference and remarkable turnaround for somebody who had otherwise given grave cause for concern as to where your future would take you."  In particular she thought your conduct since release on credit bail was "nothing short of remarkable."

16Your counsel told me that the controlled weapons you possessed were pen knives. 

17You are currently 28 years old, having been born in December 1985.  You have never previously been sentenced to immediate imprisonment but did spend three months on remand awaiting disposition on the early armed robbery charge.

18A report form Jeffrey Cummins was tendered.  A psychological report to which Mr Cummins and access and which was prepared when you were 14 was also tendered.  Mr Cummins addressed its contents in an addendum to his report.  He noted your personal history.  You have been a long-time drug user.  You have used crystal methylamphetamine and were using heroin intravenously at the time of the current offending.  You abused alcohol, describing yourself as an alcoholic.  You seem to have had a difficult upbringing, frequently changing schools, leaving part way through Year 10.  You had some but not much steady work.  You told Mr Cummins you had been diagnosed with depression, ADHD and oppositional defiance disorder.  You seem to have had little parental guidance.

19You have had a long-term relationship but your partner left you because of your drug use.  You have two children aged six and four.  As previously noted, your mother, who is a disability pensioner and suffers depression, attended court, as did I think other family.

20Mr Cummins said you expressed regret and remorse for your offending and were  able to verbalise empathy for the victim of the armed robbery.  He thought you looked and sounded severely depressed and were tearful.  You are undertaking a mood management course in prison as well as being enrolled in an alcohol and drug course.  You work as a carer in prison. 

21Of course you must benefit from your pleas of guilty.  I accept your counsel's submission that they were made at the earliest possible time and were reflective of the admissions you made when interviewed.  Your pleas saved time, expense and the need for witnesses to give evidence and avoid the stress associated with this. 

22Additionally, I accept that your pleas are accompanied by remorse.  You are angry and frustrated with yourself for reoffending in the serious way you have.

23Mr Cummins thought you were suffering a persistent depressive disorder for many years, which has been undiagnosed, and that you self-medicated with alcohol and drugs.  He thought you were in urgent need of mental health treatment, focusing on your depression and low self-esteem.  Remaining drug free is crucial to your future.  He thought your IQ, memory and personality functioning require comprehensive assessment to further assist with the appropriate diagnosis. 

24The contents of Mr Cummins' report are important and relevant to an assessment of who you are, why you did what you did, and the risk of reoffending.

25Your counsel submitted that although you have not been crime free since Judge Hampel sentenced you with penalties intended to encourage your rehabilitation, you nevertheless were able to avoid very serious offending despite mental state problems and substance abuse until the current offending, and I accept this.

26Mr Lynch on behalf of the prosecution emphasised a number of your answers in the police interview to support the submission that your crime was deliberate and planned.  As already stated you were concerned to impress a female who said you had no "ticker" and who you feared would think you were weak if you did not go ahead with the crime.  Mr Lynch emphasised your comment about not meaning to load the gun to support your appreciation of the terrifying nature of the weapon. 

27The armed robbery is particularly serious.  Obviously had the gun been loaded it would have been even more serious and the penalty would have been greater.

28As I have noted you have a prior conviction for armed robbery.  You were still relatively young, but not the young offender you were when Judge Hampel sentenced you.  It is conceded by your counsel that the courts have been keen to foster your rehabilitation in the past. Despite the progress you made after being sentenced by Judge Hampel, and indeed prior to her sentencing, it seems that your drug taking and lifestyle put you at considerable risk in the period leading up to the current offending. 

29However, you are not beyond hope.  You have previously shown an ability to pursue rehabilitation. 

30As staged by me in discussion and confirmed by your counsel, you need to do three things at a minimum if you are to succeed; cease substance abuse, have your mental state problems addressed, obtained settled accommodation and stable work.  In addition, it is likely to be beneficial if you can re-establish some sort of supportive and loving relationship with your children. But this depends on making progress with the three things just mentioned.

31The sentence I impose will be your first substantial sentence of immediate imprisonment. 

32I note you work as a carer in prison, and accept that you are currently determined to rehabilitate. 

33There was discussion comparing your case with that of the two young offenders I sentenced in May last year. 

34The prosecution is now prohibited from making sentencing range submissions.  Sentences for armed robbery vary considerably.  I am familiar with the overview of armed robbery sentences in the Court of Appeal and armed robbery case summaries contained in the Sentencing Manual on the Judicial College website.  All cases are different, and I need to sentence you paying regard to the facts of your offending and your personal circumstances.

35Can I ask you to stand up, please, Mr Coleman.  On the charge of handling stolen goods, Charge 1, you will be convicted and sentenced to four months' imprisonment.

36On Charges 2 and 3, armed robbery, and being a prohibited person using a firearm, you will be convicted of each charge and sentenced to an aggregate term of six years and three months' imprisonment. 

37I think some accumulation between the two sentences is appropriate to reflect the additional charge of handling, but I intend to make it modest. 

38The aggregate sentence is to be the base sentence.  I order that one month only of the sentence on Charge 1 be served cumulatively on the aggregate sentence. 

39That makes for a total effective sentence of six years and four months' imprisonment. 

40I fix four years as the term you must serve before being eligible for release on parole. 

41You have been in pre-sentence custody for 222 days.  This period is to be reckoned as time already served on the sentence I have imposed.

42Had you not pleaded guilty, I expect I would have sentenced you to a total effective sentence of about eight years and four months' imprisonment with a non-parole period of at least six years.

43Anything that counsel can identify that needs correcting?

44MR MORGAN:  No, Your Honour.

45MR LYNCH:  And Your Honour will hand down the orders?

46HIS HONOUR:  I have signed them and I'll hand them down now, Mr Lynch.  I'd allow your mother to say good-bye to you here if that's what you want to happen, rather than go and see you in the cells if she can catch you there, so if you want to say something to him now, but you must not come into contact with him, I will let you do it now and I will remain on the Bench.  Normally I would have left the Bench and allowed that to happen, but we have been given a direction that that is not to occur.  So if you want to say something to your son, you can do it now.  Okay.  Thanks very much. 

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