Director of Public Prosecutions v Cruz

[2022] VCC 1194

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

AT MELBOURNE

CRIMINAL DIVISION

CR 22-00317

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC CRUZ

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2022
DATE OF SENTENCE:	25 July 2022
CASE MAY BE CITED AS:	DPP v Cruz
MEDIUM NEUTRAL CITATION:	[2022] VCC 1194

REASONS FOR SENTENCE

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Subject:               Criminal Law. Sentence upon plea of guilty. 

Catchwords:        Armed robbery - Theft - Prohibited person in possession of an imitation
  firearm - Unlicenced driving - Drug and alcohol use – Limited criminal
  history - Early plea of guilty during Covid-19 - Evidence of remorse –
  Reasonable prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991;
Cases Cited:        Bugmy v The Queen [2013] HCA 37; Black v The Queen [2022] VSCA 125.
Sentence:          Total effective sentence of 6 years with a non-parole period of 4 years.     

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Byrne	Office of Public Prosecutions
For the Accused	Ms D. Lamovie	Ms C. Fazakas (Victorian Legal Aid)

HIS HONOUR:

1Eric Rodrigo Cruz Velasquez, you have pleaded guilty to two charges of armed robbery, one charge of theft and one charge of prohibited person in possession of an imitation firearm. You also pleaded guilty to a related summary offence of unlicenced driving.

2Circumstances of your offending summarised in prosecution opening for the plea and exhibited, maybe briefly recited.

3On 11 December 2021, you and another one Armstrong Fiumano-Fretton threatened 25-year-old known to you, drove to the bottle shop in Laverton, the car which you drove had no plates affixed to it, you were unlicenced and the vehicle belonged to your father. It was about 2.23 pm.

4The two of you selected a 24 pack of premix cans, once inside you each selected such a pack and you also took a 10 pack of cans from the cool room at the back of the store. You walked to that cool room without hesitation and apparent determination and as soon as you had obtained the items you turned and walked back towards the exit. 

5On your way out, an employee of the store, a female of short stature and slight build approached the two of you and asked if you needed assistance.  You said nothing and kept walking ignoring her.  She told you, you needed to pay and pulled at the t-shirt worn by your co-offender trying to restrain him.

6As soon as she did so, you pulled out a black handgun from the pocket of your shorts and pointed it at her face saying, 'I have a gun'.  You then used your arm and body weight to shove her forcefully to the ground and you then walked out calmly out of the store to your car.  You got in the driver's side with your co-offender on the passenger seat and you drove off.

7

These events were captured by CCTV footage from inside and outside the store.  They make for confronting viewing and clearly describe the events in relation to charge 1 of armed robbery.  You were wearing a black cap, a face mask and black hooded jumper, black adidas shorts, work boots and gloves. Similarly, your

co-offender had a black cap, face mask, a grey hooded jumper, black long pants, white Nike shoes and gloves. The combined value of alcohol taken was $322. 

8About 30 minutes later the two of you stopped at a service station in Derrimut in the same car. You got out at the bowser while your co-offender remained in the passenger seat.  You had changed out of the brown work boots into dark runners. 

9You began to attend to fill the car with fuel, but the attendant noticed your car did not display registration plates and requested that you display them before the pump could be activated. The co-offender then passed to you a plate from the footwell and you displayed it to the attendant who activated the pump.

10You filled the vehicle with fuel to the value of $66.66, got back in the car and drove off without paying.  These events were also captured on CCTV footage.  This was the factual basis for the theft and related driving charge.  About 90 minutes later you drove to a convenience store in Hillside in the same car without plates. You were wearing the same clothes but had removed your hat but still had the dark hoodie on.

11You initially opened the door to the store and looked inside with your co-offender slightly behind you.  Two young boys, one aged fourteen and one aged nine were inside the store close to the exit. They could clearly be seen to anyone entering the store. You briefly exited the store having looked in from the entry point.  But after about 10 seconds you reopened the door and entered.

12Your right hand was outstretched at head height and you were holding the imitation firearm passed the young boys, one of whom heard the firearm click as you walked, marching past him, straight up to the store attendant at the front counter.  Your co-offender was behind you. 

13

You walked behind the counter, you grabbed the woman by the collar while pointing the handgun at her head forcefully and demanded money. As your

co-offender began to grab armful of cigarette packets you continued to manhandle the female attendant, aggressively with the firearm at her head, demanding money.

14She yelled 'armed robbery' in Vietnamese and at that her husband who was in the rear of the store, rushed out to help her.  You continued to hold the firearm at her and she opened the cash register and you took what is believed to be about a thousand dollars in cash. Your co-offender also grabbed cash. The two young boys in the meantime had found an appropriate time to slip out of the entry door.  When you saw the male attendant near the counter you walked over and again pointed at the female attendant while yelling out. You then finally ran out of the store, got into the car and drove off.

15By the next day police had identified the car and its registration details and a search warrant was executed at your home address in the afternoon. No persons were present.  A significant number of items were seized including items of clothing in the vehicle, a number of cans of alcoholic drinks, unopened packets of cigarettes, an empty firearms magazine, work boots and a black imitation Glock handgun. 

16The cap worn by you was located in the boot of the car. The handgun was confirmed to be a gel blaster imitation firearm which is not capable of discharge.  The evening at 9.15 pm you went to the Altona police station and handed yourself in.  You were wearing the same shorts worn during the offending which the police seized. You were interviewed and made admissions, you told police you did not recall all that had occurred, because you had been on a drug bender. 

17You told police you had used cocaine the previous Thursday, then took ice until Sunday afternoon that very day. You accepted the description of events at the bottle shop that you had taken the plates off your father’s car, admitted you were the person with the gun depicted in the bottle shop.  You told police the firearm was a fake Glock 19 replica which could shoot ball bearings and that the offending had been 'spontaneous'.  I will return to this answer in a moment.

18You admitted being the man in the footage of the petrol theft in Derrimut.  You admitted also being the man depicted with the firearm on the footage from the convenience store.  The firearm seized from your home you admitted was the one you used in both armed robberies.  You were remanded.

19Three victim impact statements were received by the court.  The first was from the female attendant of the convenience store.  She wrote that as a result of the armed robbery, life is very different for her now.  She was very scared and is hypervigilant, easily startled.  She has experienced increased anxiety around people and places with loud noises.  She has not been able to work alone and sudden entries into the store leave her dizzy, nauseated and frightened. 

20She had to resort to medication to sleep and to psychological therapy sessions to deal with intrusive flashbacks and memories. She remembers you saying, 'I'm going to kill you if you don't give me the money'.  And she heard a clicking sound from the gun.  Doors and security locks have been installed for added safety.

21The two young boys who were in the store also wrote a victim impact statement.  The older of the two writes that he was not scared to leave his home by himself before the events, but that has changed.  His school work was affected as was his focus and consequently his school grades.  He described himself as more anxious and sadder and cautious.  His life too has changed.  His sleep is disturbed by frightening dreams and the counselling he too has received seems not have helped him.

22The younger of the boys wrote that he was really scared when it happened.  He ran to a friend's nearby home.  He noticed he was shutdown and numb with shock.  He still has trouble sleeping and has nightmares.  When he returned to school he could not concentrate and his thoughts were filled with the robbery.  He has seen a school and private counsellor and taken up taekwondo to feel safer.  At home he is hypervigilant and generally feels unsafe when out and at night as well as in his own home.

23In my view, this is very serious offending.  Consideration of its objective gravity by the circumstances demonstrate the gravity. Each of these elements and their combination are demonstrative of that gravity.  You wore clothes to disguise your identity including gloves and head and face coverings. They were dark in colour.  You removed the number plates on the car to ensure it would not be recognised by anyone.  I accept this intent was undone by the necessary display of the plate at the service station to obtain fuel, but nevertheless the removal demonstrates planning.

24You were in company to effect these crimes. You armed yourself with an accessible and authentic looking firearm (see photo 322 of the depositions).  You pointed the firearm at close range and frequently pressed it against the head or face of each of the two attendants and forcefully and aggressively man-handled each of these young women.  You must have been aware of the presence of two children in the convenience store and went ahead with a terrifying display while armed to effect the robbery.

25The offences were brazened, frightening and the kind of conduct which would have been terrifying for the victims and which caused dismay and consternation to the community at large.  Although the armed robbery occurred in daylight, your victims were vulnerable and relatively isolated, operating small businesses in the environments of suburban strip shops.  I do not accept your answer in the record of interview in which you assert that the offending was spontaneous (Question and Answer 92), because linked to, 'a drug rage'.

26What was spontaneous in the sense of an immediate response to the circumstances of the attendant grabbing your co-offender was your unhesitant use of the firearm.  There is nothing mitigating in this response or ameliorating in your culpability. Your voluntary use of drugs over a period of days on your account, does neither provide an excuse nor an adequate explanation for this criminal rampage. 

27You appear to have driven without incident and appear steady on your feet on both occasions and at the time of the theft of petrol.  What can be noted is that the armed robbery was in the daytime and a relatively short duration and no injury appears to have been fortunately inflicted.  But these are simply lack of further elements of aggravation. The firearm may have been an imitation, but nevertheless the victims did not know that and the capacity of that imitation firearm to terrify and to inculcate fear was undiminished by that fact.

28Armed robbery is a particular, very serious offence.  The legislators have indicated its gravity by a maximum penalty of 25 years' imprisonment.  In the context of a synthesis of factors, this is a yardstick with which I begin my consideration of an appropriate sentence.

29Theft bears a maximum of 10 years as does the possession charge, both clearly also serious offences unlike the driving offence which bears six months penalty of imprisonment or 60 penalty units.

30The armed robberies were committed in company as was conceded upon the plea.  In disavowing an earlier written submission which had been submitted in relation to Charge 1 under the hand of different counsel, from that who appeared upon the plea, a reasonable concession under the circumstances.  That being so, they are category 2 offences under the Sentencing Act and require a court to impose a custodial sentence.

31There were no arguments raised as to this reading or as to the exceptions contained in s5(2H) of the Act.  A characterisation of these offences being below the mid-range and at the mid-range contained in the same earlier written submissions was also properly disavowed by counsel at plea.

32I indicated such categorisations were not overly helpful to my determination of the seriousness, which in my view should be properly derived by an analysis of the factual circumstances in each case and not some placement within a theoretical spectrum.

33In my view the offences are actually very similar, perhaps with the second slightly more serious because of the immediate production of the weapon and the longer duration of its use, as well as the violence proffered at that occasion.  Both appear to me to be a locus classicus of the armed robbery on a vulnerable target, the first for a relatively small loot, the second more significant by way of value taken.

34I take your plea of guilty into account.  It was accepted by the prosecution that they were also chronologically early pleas of guilty. You will be given credit for your plea and it will reduce your sentence.

35The plea of guilty is also valuable in a utilitarian sense of having avoided a criminal trial and its attendant costs. I accept from all the material tendered, that it is accompanied by remorse as expressed by you to others.  In a letter written by you and as evidence by the plea, by the way in which you answered the investigators questions in the interview and by attending at the police station to in effect hand yourself in, which I take into account.

36The plea is also valuable as it is made in a time of pandemic in which the delivery of outcomes by the criminal justice system has been difficult.  It is a plea which in view of the seriousness of the offence will inevitably have exposed you to incarceration at a time when prospects of reclusion are made worse and more burdensome than usual by the pandemic. It has and will impact by way of lockdowns much time in closed confinement, restricted services, unavailable work and programs and generally harder conditions with fewer in-person visits and the present threat of contagion.

37These significant matters will continue to impact you in the future and have already done so in the pre-sentence detention period and the sentence should and will reflect a pulpable reduction in consideration of these matters.

38I take your background into account.  You are 25 years old, 24 at the time of the offences, the third of four children.  Your parents separated when you were about six.  Your mother re-partnered and you lived with her but had little contact with your father until age 12.  You told a psychologist that your mother was somewhat absent emotionally in your stepfather's presence, created much friction and fights until you left home at 18.

39You told the psychologist, Ms Carla Lechner who wrote a report for the court dated 18 May 2022, that you have a reasonably good relationship with your father, but do not communicate much with your mother. 

40Whilst at primary school you were diagnosed with ADHD and prescribed medication in 2008, but discontinued by 2012. This was attested to in a letter by paediatrician, Dr Robyn Hore in which she writes that, you presented in 2004 with ongoing problems of poor concentration, impulsivity, disruptive behaviour and poor anger management.  It was only in 2008 that Ritalin was prescribed.  After initial positive reaction you refused to take the medication until you ceased it voluntarily in 2012.

41Appended to Dr Hore's letter is an old developmental assessment report from 2002 when you were almost five years of age by psychologist Ms Marian, and one from Ms Jarzenko also of 2002 in relation to speech and language assessment.  From these it is able to be gleaned that in that time before age six, you had significant language delay and delays in social skills whilst in kindergarten.  Your aggressive behaviour was noted.

42The development assessment concluded both language and cognitive skills were below your chronological age.  In terms of language use it was very limited.  In terms of cognitive skills, performance, that was uneven.  Ongoing special therapy was recommended and given your impending commencement in primary school in 2003, an integration aide was recommended.

43Mr Jarzenko's report was requested to assist with educational planning for 2003.  You had a receptive language score of average range, below average expressive language score, and speech pathology was recommended with special educational support.

44You went to secondary school until part way through Year 9, when you were expelled.  You told Ms Lechner that was because you were, 'accused of selling drugs'.  You went onto a technical college where within the following year you were expelled for the same reason and for fighting.

45After leaving school you worked at KFC for six months and in retail for two years.  Eventually you found work as a storeman for some two and a half years, until fired because you were remanded a second time.

46You met Alicia through a friend, and she was soon pregnant with your child.  You remained together for two years. You told Ms Lechner you felt forced into this relationship and you were happy to have ended the relationship, but an intervention order was in place which prevents you from contacting both Alicia, your past partner and Aasia your two-year-old daughter.

47You stated to Ms Lechner you drank a lot during your relationship.  She noted your prior history as having 'a relatively recent onset'.  Arising out of polysubstance abuse which also increased after the breakdown of your relationship and loss of contact with Aasia, so that you currently presented with symptoms of stimulant use disorder now in remission in the controlled environment of prison.

48Your prior history is limited to an appearance in May 2020 for assault, where the victim was your partner.  Possession of Alprazolam and make a threat to kill.  This was 11 months into the relationship and your daughter was one month old.  After police were called you spent some 30 days on remand and a family violence intervention order was put in place for five years. You have continued to pay maintenance.

49The magistrate without conviction placed you on an 18-month Community Corrections Order with 100 hours of work to undergo assessment and treatment for drugs, alcohol and undergo offending behaviour programs.  It is expected that you will face a contravention hearing in August of this year for non-compliance with some conditions. Although you completed some counselling sessions you returned positive urinalysis tests and you did not follow up with psychological treatment.

50You did complete part of a men's behaviour change program in October 2021, but failed to fully engage or contribute.  You completed only some two and a half hours out of 100, though the pandemic would have made this aspect difficult in relation to work.  What is notable is that if it was hoped that such an order would have rehabilitated hopes, these hopes were largely dashed within a month of the CCO's expiring you committed these armed robberies.

51At interview with Ms Lechner, you presented with a current happy mood state with no psychiatric processes or self harm.  You impressed her socially, cognitively, emotionally immature with limited ability to engage in reflective and consequential thinking. Your verbal intelligence was still in the low range average.

52It was said that your decision making was based on partial information without consideration of longer-term potential outcomes.  You said you still felt depressed because of your early years and angry with that emotion being a problem.  Your social network appears involved with drug trafficking, although you are close to your sister Monica.

53You told Ms Lechner, you started using cannabis at age 14, progressing from there to more being used until age 20.  You have binged on Endone for six months, used cocaine everyday between 20 and 24 years of age and started the use of ice daily in August 2021.  You have also used ecstasy, LSD, Valium and Xanax.  You had been prescribed Avanza but did not take the anti-depressant.  You told her you had drank heavily at the time of these offences. 

54Psychometric testing was indicative of being mentally well. You explained the offending as a drug-induced rampage which you regret.  However you also said, 'If I'd known there were kids there I wouldn't have done it' in relation to the second armed robbery.  I do not find that statement to be acceptable, when one clearly looks at the CCTV footage it is clear this cannot be true.  As much was conceded during the plea.  However you acknowledged the traumatic experience of the victims.  You admitted that ice heightens the thrill and made you see yourself as a gangster.  Your behaviour on this day unfortunately matched your self image.

55You have applied for alcohol and drug courses, are exercising in writing to a new female friend regularly who visits you alternatively to your family members.  You were punished by 32 days in the slot at Marngoneet Prison for smashing a TV set after you found it was not working.  Clearly, you need to address your difficulty in managing negative emotions and anger and commit to abstinence from drug use as Ms Lechner writes under treatment considerations.

'There will be challenges for you given your longstanding drug use problem and the fact that you appeared to have gained some sense of belonging and acceptance by associating with a negative peer network.  Your employment history is somewhat patchy. These serious crimes were committed in the context of escalating drug use.  You expressed shame for your actions and appropriate victim empathy.'

56I take Ms Lechner's report into account.

57I do not consider that the background as described in the plea and contained in part in Ms Lechner's report amounts to the kind of childhood deprivation which was described in Bugmy by the High Court.  It was properly accepted at the plea that this was the case, but nevertheless reliance was placed on the difficulties which I have outlined, particularly as to the learning difficulties and the matters outlined above.

58I take them into account as relevance to the sentence to be imposed.  However it was not argued and in my view that cannot be said to reduce moral culpability.  Rather they enliven the principles of parsimony and proportionality that are important touch stones in the sentencing exercise discretion.

59

The application of Bugmy as clearly explained in the most recent decision of

Black v The Queen

[2022] VSCA 125 makes clear that it is only where there are deprived childhood experiences, usually as a victim of neglect and abuse which moderates an offender's moral culpability, that is necessary to call the principle of Bugmy into the assessment of that moral culpability.  Here the background does not raise to that level. Once again counsel appearing at trial appropriately disavowed the written submissions in which it had been submitted that those principles did apply.

60Another aspect of your background was raised by a letter by Marcel Bono whose son attended primary school with you.  He writes that you became like a second son and that you worked in his family business, 'on and off for the past eight years whenever you were out of work.  He has become a friend.'  He then writes that you turned to drugs and they took over.  He wrote of your remorse and of your hope to be finished with drugs and prison.

61Your sister, Monica, mother of four with whom your father resides, also wrote a letter on your behalf.  She is a caregiver coach and has been working in aged care and disability for 15 years and is studying for a Diploma in Community Services.

62She writes of the impact of your parents' separation which occurred at a time when she had become pregnant and moved out of home.  This affected you as a three-year-old and thereafter she notes, you developed mental delay and ADHD surfaced.  You spent time with her at her home, but you witnessed her ex-partner's abuse which she believed also affected you.

63You have assisted her and her children. She writes that at age 18 or 19 you became a born again Christian and at that time had a lot of involvement with the local Pentecostal Church and its youth and general services. However she soon discovered you were again on drugs and as far as she knew at the time of the offences you were working, renting a home and keeping fit in a home gym.

64She assisted you with your attendance at the police station after the offending.  She attests to your regret and remorse.  She writes of the support you had within the family, the church community and among friends as well as speaking of your aspirations of overcoming your past and your future goal to own a barber shop.  I take this impressive reference and contents into account.

65A certificate was tendered that you had completed the Caraniche ice effects program in June of this year.  A six-hour program referred to in your sister's letter and you are on a waiting list for other drug courses during which time you have worked cleaning toilets, reading and training on a daily basis.

66You also wrote a letter to the victims which I accept reflects your remorse and shame and your wish to contribute in the future to the community in a law-abiding fashion.  I accept that you have reasonable prospects of rehabilitation given the support which you enjoy and the protective factors each of these I have mentioned represents.

67I accept you are still young and although not a youthful offender as that term is used with particular meaning in relation to the status of an offender to which certain principles apply.

68Given your age and lack of extensive relevant history I will accept that your prospects as I have already said are not extinguished but reasonable and that the disposition of this matter should reflect as prospects to assist rehabilitation and prospects.

69These have of course to be considered with the other primary principles of general deterrence, community protection and just punishment. The court should denounce your conduct in no uncertain terms while recognising your youthfulness and be purposely cautious not to crush those prospects.  Much of those prospects will depend on your commitment to abstain from drug use. 

70I consider that I should take into account in application of the totality principle the fact that you were on remand for 30 or so days before a Community Correction Order imposed in 2020 and your month in the solitary confinement which I have mentioned.

71I consider that there should be some slight cumulation in recognition or separate and distinct offences in relation to the possession of the firearm, the theft and the licence charge and a more substantial period for the second armed robbery, although it was first in time.

72Although the offences can be seen to have been a cause of conduct, nevertheless they were distinct and affected different victims.

73On the charge of armed robbery, Charge 1, you are convicted and sentenced to four years' imprisonment.

74On the charge of armed robbery, Charge 3, you are convicted and sentenced to four years and nine months' imprisonment.

75On the theft Charge 2, you are convicted and sentenced to six months' imprisonment.

76On the charge of being a prohibited person in possession of an imitation firearm, Charge 4, you are convicted and sentenced to 12 months' imprisonment.

77On the related summary charge of driving unlicenced, you are convicted and sentenced to one month imprisonment.

78

I order that 12 months on Count 1, one month on Count 2, two months on

Count 4 be cumulative on Count 3 and on each other, making a total effective sentence of six years. I order a non-parole period of four years.

79I declare that you have served 225 days by way of pre-sentence detention and note in the court's records that particular number.  I will sign the forfeiture order.  But for your plea, I would have sentenced you to seven years' imprisonment with four and a half years non-parole period.

80MS BYRNE:  As Your Honour pleases.

81MS LAMOVIE:  As Your Honour pleases.

82HIS HONOUR:  Yes, thank you.  Yes, thank you everyone.  I have another matter proceeding in a few moments, I will excuse everyone.  Ms Lamovie would you want to take an opportunity to speak to your client at the moment or do you have an appointment already made to do otherwise.

83MS LAMOVIE:  If I can Your Honour, if there are a few minutes of course, otherwise I will make another appointment.

84HIS HONOUR:  Look, what I'll do is I'm still seven or eight minutes short for the resumption of the next matter, so I'll step outside and you can have a chat to him if you wish and I'll return when you've finished.

85MS LAMOVIE:  Thank you.

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