Director of Public Prosecutions v Cumine

[2016] VCC 657

Pages 1 - 6   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted  Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00008

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA CUMINE

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2016
DATE OF SENTENCE:	19 May 2016
CASE MAY BE CITED AS:	DPP v Cumine
MEDIUM NEUTRAL CITATION:	[2016] VCC 657

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Accused	Ms P Smith	Papa Hughes

HIS HONOUR: 

1Joshua Cumine, you have pleaded guilty to one charge of car theft and two charges of armed robbery.  The maximum penalty for car theft is ten years' imprisonment and the maximum penalty for armed robbery is 25 years' imprisonment. 

2I have heard a summary of the offending, and it is not my intention to repeat the whole summary.  It is Exhibit A in this hearing. 

3Briefly, between 10 pm on 3 September 2015 and 2 am on 4 September 2015, a Nissan Skyline sedan was stolen from Sunshine North.  At 2.15 am that vehicle was driven to the front door of the Caltex service station in Sharps Road Tullamarine. You were a passenger in that vehicle. Your co-offenders, Mokaraka and Sola, were also passengers in the vehicle.  The three of you were armed and you had covered your faces with a white cloth.

4Mokaraka approached the locked front door and began hitting it with a baseball bat. You got out of the car with a sledgehammer and smashed the door. Sola was armed with a knife and he pointed it towards the attendant before entry was gained. Once inside the premises the three of you behaved aggressively and threateningly towards the attendant before eventually stealing cash and leaving the store. 

5You were then driven to the 7-Eleven service station in Bell Street, Coburg where the three of you again forced your way into the store, behaved aggressively and threateningly towards the attendant and left with money and cigarettes. 

6You were arrested on 29 September 2015 and remanded in custody.  On 8 December 2015 you were released on bail with strict conditions.  You entered a guilty plea at a committal case conference on 7 January 2016.

7Mr Cumine, this is serious offending.  You were a passenger in a stolen vehicle. You committed two armed robberies in the company of two other young men. The armed robberies were planned and you chose soft targets. You were disguised.  You behaved aggressively and threateningly towards the victims.  It must have been a terrifying experience for them.  

8General deterrence, just punishment, and denunciation are all highly relevant sentencing considerations in this case.

9You have relevant prior court appearances.  On 12 May 2014, you appeared at the Sunshine Children’s Court on a large number of charges including armed robbery, affray and five counts of motor vehicle theft.  You were released on a 12 month Youth Supervision Order (YSO) with a special condition to attend drug and alcohol counselling.  On 19 September 2014, you again appeared at the Sunshine Children’s Court for an offence of affray that occurred on 24 April 2014.  You were placed on another Youth Supervision Order for 12 months. The current offences occurred whilst on that order and therefore constitute a breach of the order.  Given this history, specific deterrence and protection of the community are also relevant sentencing considerations.

10Your counsel submitted a number of matters in mitigation.

11You entered an early plea of guilty.  Your guilty plea has saved the victims from the trauma of giving evidence, and saved the community the cost and expense associated with a criminal trial.  I am also satisfied that your plea of guilty is indicative of remorse.  You will be given credit for all of these matters.

12You come from a loving and caring family.  Notwithstanding the heartbreak that your behaviour has caused them, they stand by you and still strongly support you.

13I was told that you commenced using cannabis at the age of 13 and quickly became a regular user.  Your abuse of alcohol has also been a problem. You began associating with a bad peer group and your schooling suffered. Inevitably, you started to get into trouble with the law.  At the age of 16 you spent one week in remand in a youth justice centre for the offences that were dealt with in the Children’s court in May 2014.  Prior to committing the current offences you had been smoking cannabis and drinking whiskey.

14Mr Cumine, you have to accept that you cannot use drugs and alcohol.  The abuse of these substances has had a profoundly destabilising effect on your life.  The Children’s Court gave you the opportunity to address these problems with the support of Youth Justice.  Unfortunately, you relapsed into drug and alcohol abuse, and although that may explain the current offending, it does not excuse it in any way.

15I do accept that even though you have serious prior history, you are still very young, and I accept that rehabilitation is still an important sentencing consideration in your case.

16After your arrest you spent 71 days in adult custody.  This was after the riots that had afflicted the prison system.  Your time on remand was spent in 23-hour lockdown.  I accept this would have been hard for you.  It was your first time in adult custody and it was said by your counsel to have had a salutary effect.  

17After your release on bail, you responded very well.  You re-engaged with the Parkville College, you worked for your mother when you were not at school, you participated in counselling through YSAS and you stayed out of trouble.  These matters are to your credit.

18Your counsel submitted that given your young age, it would be appropriate to sentence you to 71 days' imprisonment (already served) together with a lengthy and strict community corrections order.

19I am unable to accede to that submission.  The seriousness of this offending; the fact that the offences were committed whilst on a Youth Supervision Order; your prior conviction for armed robbery; and the orders made against your co-offenders all speak against such a course.

20I do think you are a reasonable prospect for rehabilitation and this explains why I had you assessed for your suitability to undertake a youth justice centre order.

21I must confess that I was concerned about your relapse into drug and alcohol abuse prior to the commission of these offences.  However, I accept that your progress over the last few months on bail is cause for some optimism in regard to your future.

22Having read the youth justice centre assessment it seems to me that you are not a particularly impressionable or immature young man but I am prepared to find that you would be subject to undesirable influences if you were sentenced to a period of adult imprisonment.

23In determining the appropriate sentence, I have taken account of the fact that this will be your first custodial sentence.  I have also considered the orders made against your co-offenders.  There are important reasons why you should be dealt with differently to your two co-offenders.  Firstly, they were young offenders and therefore subject to the jurisdiction of the Children’s Court. Mokaraka was 15 at the time of the offending and Sola was 17.  Their matters were first heard in the Children’s Court and then after a Director’s appeal, in this court.  They were both sentenced to a total effective sentence of 19 months' detention in a youth justice centre.  Their position is different to yours because they were dealt with under a sentencing regime where general deterrence plays no part.  Secondly, neither of them had a prior court appearance for armed robbery.  However, in considering your sentence, I have taken account of the fact that your co-offenders were sentenced on a large number of charges, including eight charges of armed robbery.

24Mr Cumine, the youth justice centre assessment is a favourable one, and I intend to make such that order.  Would you please stand.

25On the first charge you are convicted and sentenced to 4 months' detention in a youth justice centre.  In addition, all licences are cancelled and you are disqualified from driving in the state of Victoria for a period of nine months.

26On Charge 2, you are convicted and sentenced to 18 months' detention in a youth justice centre.  On Charge 3, you are convicted and sentenced to 18 months' detention in a youth justice centre.  I order three months of the sentence on Charge 3 be served cumulatively on the sentence on Charge 2.

27This makes a total effective sentence of 21 months' detention.

28I declare that you have served 71 days' presentence detention.

29I should explain this to you, Mr Cumine.  That in relation to the sentence, it is not for me to fix a minimum term before you will be eligible for release on parole.  That will be a matter for the Youth Parole Board, and I anticipate that once you commence your sentence you will be spoken to by those who administer youth parole about the parole arrangements.

30If you had pleaded not guilty and been found guilty after trial, I would have imposed an effective term of imprisonment of three years, with a two year minimum before you would be considered eligible for release on parole.   You can be seated there for the moment.

31There were no ancillary orders in this matter?

32MR ROPER:  No, Your Honour.

33HIS HONOUR:  Yes, thank you. 

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