Director of Public Prosecutions v Combo

[2020] VCC 1033

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01783

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIONEL COMBO

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2020
DATE OF SENTENCE:	13 July 2020
CASE MAY BE CITED AS:	DPP v COMBO
MEDIUM NEUTRAL CITATION:	[2020] VCC 1033

REASONS FOR SENTENCE

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Subject: attempted armed robbery

Sentence: New non parole 15 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray
For the Accused	Mr C. Terry

HIS HONOUR:

1Lionel Combo, you have guilty to 2 charges of attempted armed robbery.  The maximum penalty for each of these offences is imprisonment for 20 years.  In addition, you have pleaded guilty to a charge of theft for which the maximum penalty is imprisonment for 10 years.  The offences occurred in the early hours of the morning on the 1st of February 2019.

2At the time of offending you were a young offender aged 20 years.

3The circumstances of your offending are summarised in a summary of prosecution opening dated 17 June 2020.  That document was tendered in evidence by the prosecutor Mr Gray, and it was read to the court by him.

4Your counsel, Mr Terry agreed that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you for these crimes.

5In those circumstances it is not necessary that I here repeat in full that which is set out in the summary, and I do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with what is set out in the summary.

6In the early hours of the morning on the day of offending, the two victims, young 18-year-old males, went to the 711 store in Narre Warren for the mundane purpose of buying some milk.  Outside the store they stopped, again for the mundane purpose of smoking a cigarette.  You, and an unknown co-offender arrived in a stolen vehicle.  After a short time, you armed yourself with a metal pole and you and your co-offender partially covered your faces with bandannas.  The two of you then demanded cigarettes from one of the victims.  In doing so you swung the metal pole and hit the first victim in his rib area.  This victim ran away (Charge 1 attempted armed robbery).

7You then directed your attention to the second victim; still armed with the metal pole and accompanied by your co-offender, you demanded cigarettes and money from him.  You told the second victim that if he did not give you what you wanted you would stab him.  The second victim pretended to be armed with a knife himself putting his hand into his pocket and he said to you, 'Fuck off or I’ll stab you'.  You backed off momentarily whereupon the second victim ran to his friend.  You and your co-offender followed the two victims in the stolen vehicle whilst yelling at them (Charge 2 attempted armed robbery).

8The two victims escaped; however, the second victim had left behind a satchel which contained amongst other things his Australian Passport, a wallet, school identification cards, a Myki card, and a CBA bank card.  You took the satchel which contained these items (Charge 3 theft).  No victim impact statements were filed by the prosecution.

9In my judgement your offending was at a relatively low level for this kind of offending.  It was unplanned and opportunistic.  You and your unknown accomplice acted together, and you partially disguised yourself.  You armed yourself with a weapon and you used the weapon in the course of Charge 1, but fortunately you did not inflict any injuries.  The purpose of the attempted robberies seems to have been only to steal cigarettes and perhaps money.  Charge 3 occurred by chance because in the commotion the second victim fled the scene leaving behind the satchel which you took.  The satchel was later recovered absent the items referred to in Charge 3.  Your offending is aggravated somewhat by the fact that at the time these offences occurred you were subject to a Community Corrections Order that had been made in the Melbourne Magistrates' Court on 17 December 2018, only about six weeks earlier.

10You have pleaded guilty to the charges and that is to your credit.  You were initially charged on summons and there was a filing hearing on 17 July 2019.  At a committal mention on 4 September 2019 you indicated a plea of guilty and accepted a straight hand-up brief.  The plea date was fixed for 10 February of 2020 but that did not proceed.  Eventually, the matter was listed for trial before me as judge alone on 22 June 2020.  On that date you pleaded guilty to the charges.  You had offered to plead guilty to the charges at an early time, and for the purposes of sentencing I treat you as having offered to plead guilty at the earliest opportunity.

11Because you have pleaded guilty, you are entitled to, and will receive a reduction in sentence.  That is because you have saved the time and cost of a trial and for the need for the victims to have to give evidence.  Further, by your pleas of guilty you have accepted responsibility for your offending, and you have advanced the administration of justice.  Also, I accept that your pleas of guilty evidence remorse on your part.

12When you pleaded guilty you also admitted a number of prior convictions from eight previous court appearances between 2015 and 2018.  Those prior matters arise from appearances in the Magistrates' Court and the Children's Court.  Your prior offences are varied in nature but are mostly for dishonesty and motor vehicle offences.  You also have prior convictions in the Children's Court in Western Australia.

13Apart from the facts that you are a young man and a youthful offender of Aboriginal heritage, totality in sentencing is an important principle that I need to keep in mind in the sentencing of you.  You were remanded in custody in relation to other charges unrelated on 19 August 2019.  You have remained in custody since that time but there is no pre-sentence detention referable to these charges.

14On 19 March 2020, you were sentenced in the Magistrates' Court to a total effective sentence of two years and eight months with a non-parole period of 20 months.  225 days pre-sentence detention was declared that related only to that unrelated summary offending.  You are presently eligible for parole under that sentence around 19 April 2021, about nine months from this date.

15That is how the totality issue arises and it will be necessary that I fix a new non-parole period.  Your counsel conceded that I must impose a term of imprisonment for this offending.  That was a concession properly made.  The non-parole period I will soon re-fix will adjust that to 15 approximately months.

16You were born on 6 July 1998.  You were born in Mildura and you are of aboriginal heritage on your father's side.  I was told and accept that your father was verbally and physically abusive towards your mother, and your parents separated when you were a young child.  You have no relationship with your biological father.  You have a full brother Leonard aged 22, and two half-brothers aged 25 and 28 respectively, with whom you have no real relationship.  Your mother took you to Western Australia shortly after she separated from your father.

17You attended three different primary schools in Perth and later you attended secondary college also in Western Australia but you left school at approximately Year 8.  You subsequently completed Year 10 equivalent but whilst in custody at a Youth Justice Centre in Parkville, Victoria.  You have thus had a fragmented and limited education.  You have no history of paid employment but when released you hope to achieve paid employment.  I accept you have had a deprived and disadvantaged upbringing. 

18You have a history of alcohol abuse from about the age of 11 or 12 but it played no part in this offending.  You used cannabis heavily during your late teenage years, but you managed to cease using this drug about 10 months before being remanded in custody in August 2019.  There was a brief period of heavy methylamphetamine addiction, but you ceased the use of that drug with the help of your girlfriend and you have not used methyl amphetamine since about the age of 18.  You have thus shown some ability and motivation to stay away from drugs and alcohol and rehabilitate yourself and this is to your credit.

19In the past you have been medicated with various drugs prescribed for diagnosed ADHD between the ages of six and approximately 16 years.  I was told and accept that you managed to wean yourself off any medication and you have not been prescribed any medication for mental illness or mood disorder since. 

20Your only involvement in counselling or psychological support was through the PIVOT program in 2018, where you attended some consultations with a 'Headspace' clinician.  In custody, you have complained of panic attacks as a result of 23 hour a day lockdowns and you have difficulties sleeping and experience nightmares, but no diagnosis has been made in relation to these symptoms.

21I received into evidence as Exhibit 2, a psychological report from Mr Jeffrey Cummins dated 17 January 2020.  Mr Cummins found no evidence of psychotic illness, acquired brain injury or intellectual disability.  He thought your offending was most likely related to psychological immaturity as opposed to entrenched antisocial personality.

22Mr Cummins thought that you need to participate in a comprehensive anger management program, and from what you said to him he formed the opinion that you were motivated to do so.  You have good support from your girlfriend of long-standing and she has been a positive influence in your life.  You also have the support of your mother.  Both your girlfriend and your mother have been visiting you in custody, although visits have now been curtailed and your prison life has been made more difficult by the COVID-19 restrictions impacting prisons.  In passing sentence I have taken all of this into account as I must.

23Although you have now been before the courts on a number of occasions, and you have also been imprisoned on a number of occasions, this being the longest sentence that you have had to undertake, I have formed the view that there is still some chance that you can be rehabilitated.  You have shown some motivation to rehabilitate yourself by getting yourself off drugs and by participating to some extent in the PIVOT program and also in the program at Wulgunggo Ngalu Learning Place, a program for young Aboriginal offenders sentenced to a Community Corrections Order.  In general terms, I assess your prospects of rehabilitation as being reasonable but guarded.

24In sentencing you for offending of this kind I must have regard to deterrence (both general and specific) and for the need of the sentence to appropriately denounce your offending.  In your case I must also have particular regard to totality in sentencing, and the fact that you are a youthful offender who is perhaps immature, and I must pass a sentence that does not institutionalise you as an offender.  In arriving at an appropriate sentence, I have endeavoured to have regard to these factors.

25Your counsel submitted that the sentences imposed for this offending should be substantially concurrent with the sentence for offences that you are presently undertaking.  I was told and accept that the sentence you are presently serving is for a number of more serious consolidated offences occurring in December 2017 and January 2018, as well as in January and March of 2019.  Mr Terry submitted that this offending for which I must sentence you was a relatively small part of your overall offending.  Nonetheless, these are relatively serious matters as the maximum sentence for attempted armed robbery indicates.  In my sentence, I have provided for half of the overall sentence I will impose to be concurrent with your current sentence.

26On Charge 1 attempted armed robbery you are convicted and sentenced to a term of imprisonment of two years.

27On Charge 2 attempted armed robbery you are convicted and sentenced to a term of imprisonment of 18 months.

28On charge 3 theft you are convicted and sentenced to a term of imprisonment of three months.

29I direct that one year of the sentence imposed on Charge 1 be served cumulatively upon the sentences you are currently serving.

30Section 14(1)(b) requires me in these circumstances to fix a new non-parole period.  I direct that you serve a minimum term of 15 months' imprisonment from this date before being eligible for parole. 

31For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of four years' imprisonment and ordered that you serve a minimum term of two years and eight months.

32Are there any questions arising out of that, Mr Gray?

33MR GRAY:  No, Your Honour.

34HIS HONOUR:  Mr Terry?

35MR TERRY:  No, Your Honour.

36HIS HONOUR:  All right.  Thank you for making yourselves available this morning.  I will have my tipstaff cease the transmission.  Thank you very much.

37MR TERRY:  Thank you, Your Honour.

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