Director of Public Prosecutions v Curry
[2016] VCC 1043
•19 July 2016
kk
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-16-00796
Indictment: G10449541
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN CURRY |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea : 13 July 2016 | |
DATE OF SENTENCE: | 19 July 2016 | |
CASE MAY BE CITED AS: | DPP v Curry | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1043 | |
REASONS FOR SENTENCE
---
Catchwords: armed robbery (x1) and robbery (x2);
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J Malobabic (on 13 July) Ms A Mclure (on 19 July) | Office of Public Prosecutions |
| For the Accused | Ms K Blair | Patrick Dwyer Lawyers |
HIS HONOUR:
1
John Curry, you have pleaded guilty to two charges of robbery and one charge of armed robbery. The armed robbery charge carries a 25-year maximum term of imprisonment. The robbery charges each carry a maximum penalty of
15 years' imprisonment.
2 You have a relevant criminal history. You were born on 18 May 1989 and you are now 27 years of age. You were 26 years old when you committed these offences.
Facts
3 The details of your offending are set out in the written prosecution opening which was tendered and marked as Exhibit A on this plea. I was told by your counsel, Ms Blair, that this was an agreed statement of facts. In addition, there were some photographs which were tendered which included stills from various CCTV cameras at the service station which was targeted in your offending. I have also viewed the CCTV footage. Those photos and the video are marked as Exhibit B and D respectively. So I see no need to descend to the full detail of the sentencing facts in these, my sentencing reasons. The summary in conjunction with the footage and the photos set out the sentencing facts and I do not go beyond that material.
4 So I will incorporate the prosecution opening into my reasons for sentence. Your counsel concedes that the offending was serious. On three occasions you attended at the Caltex service station in Widford Street, Broadmeadows. The two robberies were eight days apart and committed upon the very same victim. The armed robbery was committed at the same location but upon a different victim on that occasion some months later. On that later occasion you wielded a large machete which was swung down to strike the counter twice. It was then pointed at the hapless console operator. On that occasion, and this was at about 12.35 am, and the occasion of the second robbery at 12.30 am, a customer or customers were present. People, including a delivery driver and a customer, came and went in the course of the first robbery, and that offence took place at about 10.20 pm.
5 Of course the written summary sets out the conduct in far greater detail. The CCTV footage shows your movements and the movements and response of others. It shows the way that you vaulted the counter in relation to Charge 1 and the manner of your movement towards the victim. It shows the brazen nature of this offending. It persisted even as a customer and delivery man attended. You had also waited patiently for the various customers who had been present to leave before committing the offence. The CCTV footage of the second robbery shows the position of two customers actually at the counter as you came up and committed the offence. As to the armed robbery, you were described by your counsel as presenting on that occasion as ‘a perfect storm’. You did. Sweeping into the service station, bare chested, walking quickly and purposefully up to the counter and swinging the large machete into the counter twice. There was a customer on your side of the counter a very short distance away and he is seen on the footage to try to exit the store but he could not get out the door. The footage is worth viewing as it is quite difficult for words to actually fully describe the events. The footage captures the events and it is pretty startling, especially the final offence of armed robbery. In any event, I sentence on the basis of the agreed facts constituted by the summary, the CCTV footage and stills.
6 You had a boy with you for the first incident but he was dealt with for a different offence, being theft. He was obviously much younger than you and he was born on 26 November 1999 so was only 15 years of age. He was your then and current girlfriend’s brother and was dealt with in the Childrens’ Court for theft. That outcome does not shed any light at all on the sentencing outcome required in your case, as your counsel correctly concedes.
7
So your criminal conduct took place between 20 September 2015 and
1 February 2016.
8 You were arrested on 12 February of this year and were generally uncooperative with the police. I hasten to add it was your right to not comment and you are not to be punished for taking that stance. You took it a bit further than that actually and stridently challenged the allegations and the strength of the case but, again, that is plainly not a matter in aggravation and I do not hold any of that conduct against you at all. All it does is prevent your counsel from suggesting that you were cooperative so that sort of mitigatory matter obviously does not apply here because you were not cooperative. You have been in custody since arrest, which is a period of 158 days.
Victim impact
9 I turn now to the issue of the impact of your crimes. The summary itself spells out the sentiments of the victim of the armed robbery. Your two victims have chosen not to make victim impact statements and that, of course, is their right. Obviously though, the armed robbery was a frightening event. Your victim was left extremely distressed and shaking and in shock. No doubt the robberies were unsettling at the very least. In one case you had leaped over the counter and were in very close proximity to that victim. The footage shows the reaction of the console operator. No doubt your conduct had an immediate impact on the two victims and, of course, one of them was robbed twice by you eight days apart.
10 However, I am not able to reach any finding as to any long term impact in relation to any of the offending in the absence of victim impact materials placed before me.
11 I take into account, as I must, the impact of your crimes upon your victims.
Submissions In Mitigation
12 Your counsel, Ms Blair, raised a number of matters in mitigation in an excellent plea conducted on your behalf. She relied primarily upon:
· your early guilty plea;
· your increased burden of imprisonment;
· the presence of some remorse;
·
she relied upon the report of Laura Anderson, a neuropsychologist. That report referred to some other material including notes from North West Mental Health (NWMH) and a much earlier report from Mr Cummins. A discharge summary from North West Mental Health and the report of
Mr Cummins were placed before me as a matter of completeness. None of that material, including the report of Ms Anderson, was being relied upon as attracting any of the principles from the case of Verdins v R (2007) 16 VR 269;
· as to the offending, your counsel made some submissions as to the presence or, for that matter, the absence of some aggravating features and the relative level of offence's seriousness;
· she took me to your background and argued that you had at least some prospects of rehabilitation;
· she conceded the seriousness of the offending and the inevitability of a sizeable immediate term of imprisonment, but argued that a combination type disposition might be open whereby a sentence of up to two years imprisonment might be blended with your ultimate release on a community corrections order.
Crown Submissions
13 Ms Malobabic, who appeared to prosecute on behalf of the Director of Public Prosecutions on the plea, submitted that an immediate prison term was warranted and one the dimensions of which could not accommodate any consideration of a community corrections order.
Background
14 I turn to your background now, and do so only briefly as there is no reason at all for me to doubt the family background that has been placed before me by your counsel. Ms Blair told me something of your personal history. It is set out also in more detail in the report of the neuropsychologist, Ms Anderson, and for that matter, the report of Mr Cummins. The report of Ms Anderson was marked as Exhibit 3 on the plea. Your background is also, by the way, set out more than adequately at paragraph 8 of the revised written outline of counsel, which is marked as Exhibit 1.
15 So I do not see the need to recite back to you in full detail your own personal background. You know what it is. You were born on 18 May 1989 and you are now 27 years of age. You were no teenager when committing these offences. You were 26 years of age. You were born in New Zealand, you came to live in Australia in about 2004 when you were about 15 years of age. You are one of five children. You have four sisters. You have three children yourself aged seven, six and five, though you have had no contact with them since late 2015 or early 2016 and that, of course, is upsetting for you. You separated from their mother about a year earlier. You have worked off and on as a painter over many years now, often with your father and I am told that a job will be available to you upon your ultimate release from prison.
16 You have had very significant issues with drugs and alcohol for many years now, and it seems clear enough that you have had some serious issues with your mental health. You left school far too early, only just scraping into high school for a few days or so before being expelled. The report of Ms Anderson speaks of some serious events that you say occurred to you in your developmental years, though I do note that you explicitly denied any such conduct when speaking with Mr Cummins, so it is very hard to know what to make of any of that.
17
From what I have been told and from what I have read in the report of
Ms Anderson and Mr Cummins, your personal background has been of some disadvantage, obviously enough, and I take that into account as far as I am able to. The fact is for whatever reason, you do not function at a high level and your abuse of drugs and past failure to take prescribed medication is obviously massively problematic.
Criminal history
18
Part of your background, unfortunately, is your history of appearances before the courts. It is not the longest of criminal histories, I make that plain, but it is obviously relevant. You have appeared for a range of offences, some more serious than others. It is undoubtedly relevant to my task, though of course you do not fall to be sentenced a second time for any of your past conduct. You have received and served the sentences that have been given in the past. However, there are past appearances for crimes of violence and dishonesty. You have been dealt with in the past for the crime of robbery and recklessly causing injury. I have read the sentencing reasons of the Judge who sentenced in relation to those matters, it was Judge Smallwood, and I do not lose sight of the fact that you were 18 at the time of that serious offending and only 20 when you came before the Court. Regrettably, you breached the CBO imposed in late 2009 by Judge Smallwood. Upon resentencing the order was cancelled and you received a three month term with all but one week of that period held in suspense. You got a community corrections order in February 2012 at the Heidelberg Magistrates’ Court for theft and recklessly causing injury and you breached that community corrections order as well. At the Heidelberg Magistrates’ Court on 14 November 2013 you were dealt with for yet another instance of recklessly causing injury and a threat to kill. You ultimately, on appeal to this court, received a nine month term with four months of that nine months to serve and the balance held in suspense. You have been dealt with since that appearance for theft and assault. One of those matters, the assault, pre-dated the appeal sentence and you received a concurrent seven day sentence on 6 May 2014 as you approached your release from the appeal sentence. As I understand it, you were in custody from about
14 November 2013 until 8 May 2014 and I am told you were confident or at least hopeful that upon release you would be able to keep to “the straight and narrow.”
19
So it is clear that you have breached both community based dispositions that have been given to you by courts and you have received terms of imprisonment in the past. You also concede that you committed offences in the operational period of the suspended sentence that had been imposed in this Court on
17 March 2014, though the breach proceeding awaits the formal guilty plea to the breach offences. They are being dealt with by way of a consolidated guilty plea at the Magistrates’ Court on 10 August of this year. I was told by Ms Blair that there are some 35 charges involving driving and dishonesty offending, together with one breach of an intervention order, though not a breach involving any actual violence. Those offences occurred between 8 August 2014 until
17 November 2014, so following on from your release from custody in May of that year. You are pleading guilty and so, as I say, the suspended sentence will no doubt come back in due course to this Court for breach proceedings. I add that the offences for which I must pass sentence did not occur in the operational period of that suspended sentence.
20 You had hoped that things would go well upon your release in May 2014 but evidently they did not and you had returned to drug use within a relatively short time. You had suffered the deterioration of your relationship with your then partner. You started to re-offend. I was told that at one stage the Department of Health and Human Services had been involved in relation to the three children and had set out some conditions for you to comply with.
21 Courts have tried in the past to deter you and to lead you away from crime and onto the path to rehabilitation and yet you have not taken the chances that have been offered to you. I will try again to deter you. The need for specific deterrence is very plain here. So too community protection.
Neuropsychologist’s report
22 I have referred already to the report of Ms Anderson, and I do take into account that report. So too the discharge summary from North West Mental Health and the report of Mr Cummins. I see no need to set out in any detail the terms of that material. There is nothing in any of that material that is relied upon as attracting any of the principles from the case of Verdins v R (2007) 16 VR 269. Your counsel explicitly disavowed any such reliance on that case. Correctly so, in my view. The material, though, is still of value and it gives me some real sense of your background and your level of functioning and the challenges that await you in the future and the likely need for treatment in the years ahead. Also there is reference to the suggested difficulties that you faced as a child. As I said earlier, it is hard to know what to make of that account as it directly conflicts with the account you had given to Mr Cummins in 2014 in respect of that sort of issue. In the end, I am not sure I really need to resolve the issue as it is not suggested that there is any connection between that alleged conduct and your criminal conduct. Maybe those things happened, maybe they did not. I really do not know and how can I when you have given very different accounts in that respect? Maybe one can get too caught up in all of this. I certainly accept that your childhood was far from easy. Whether those acts did or did not occur, the fact remains that your level of functioning is what it is, and that is reported on by Ms Anderson and that is what is important, not the reasons underpinning your state. You have had very limited schooling and, in my judgment, probably limited advantages in life and as I say, I take that into account as far as I am able to.
23 The fact is, though, there was, and is, no psychological condition explaining the offending or even contributing to it. This offending has all the hallmarks of desperate criminal conduct, conduct committed to obtain funds for drugs and committed under the influence of drugs but those matters are not mitigatory. Your counsel conceded that they were not mitigatory and, again, she was plainly right. Though you have been fixed with an awareness of your increased aggression when using Ice and other drugs, and you have mentioned that to North West Mental Health and to Mr Cummins, I certainly do not turn that around and find that use of drugs on the day of offending is a matter of aggravation. Undoubtedly your drug and alcohol use complicates your mental health predicament and your level of functioning. There can be no question about that. So too your past failure to take prescribed medication. If you keep using drugs there is just no hope for you at all. You have recognised that in the past and said as much. See paragraph 32 of Mr Cummins’ report where you said to him in March 2014, in relation to being in custody, “Being in here has helped me, it’s made me realise I have to change things around otherwise I’ll just be in and out of jail for the rest of my life”.
Guilty Plea
24 I turn to the matters raised in mitigation. The first of these is your guilty plea. You pleaded guilty. Your plea of guilty has a strong utilitarian value. It was entered at the earliest opportunity and you will be given the appropriate discounts for that earliest of pleas. As a result of your guilty plea, witnesses have been spared the experience of coming to court. That is a big positive in this sort of case. It has avoided witnesses reliving the event in Court. That can sometimes be a very traumatic experience for a witness and that has been avoided here. The community has been spared the time, the cost and the effort of a contested hearing. So you have, by taking responsibility in the way that you have, facilitated the course of justice, and I will pass a substantially lesser penalty because of your guilty plea and the stage it was entered.
Remorse
25 I turn to the issue of remorse. Not every guilty plea is indicative of remorse. Some are. Some are not. Your interview was not suggestive of any remorse in this case, and there was none on display in that interview. However, you have since pleaded guilty. Your plea was at the earliest stage. I am prepared to treat your guilty plea as indicative of at least some limited remorse but beyond that I can see no real evidence of remorse in the materials placed before me. Certainly I was not taken to any on the plea. So I find the existence of some limited remorse as evidenced by your guilty plea and I take that into account in mitigation.
Rehabilitation
26 I turn now to submissions made as to your prospects of rehabilitation. It is notoriously difficult, sitting up here, to make judgments as to the prospects of a person's rehabilitation. Harder still to make optimistic judgments where there has been a long term history of drug and alcohol abuse and mental health problems or potential issues in childhood that have not promoted or permitted normal or appropriate development. I have your serious offending. I have your past history before the courts and your seeming lack of response to various Court orders.
27 I have already said of your criminal history that it is certainly not the worst criminal record placed before the courts. Far from it and at least you have some family connections, some family support, a partner and a past history of working and a job available to you in the future. The fact is, though, that you have had those things in the past.
28 I note the sentencing remarks of Judge Smallwood. He passed a sentence for a serious robbery and recklessly causing injury and moderated the sentence owing to the significant progress that you have made and the evidence placed before him from two professional witnesses spelling out your prospects of rehabilitation and developing insight. He thought he could have confidence in your prospects, that rehabilitation would be successful and there would only be a slight risk of re-offending. On the material placed before him, his conclusion was hardly surprising. Of course, you have proved him wrong. You breached that order. Still, you reoffended and similar themes as to developing insight and the pledge to give up drugs and crime are spelt out in the report of Mr Cummins. That report was prepared in 2014 in advance of the appeal in the County Court. Well, your appeal was in part successful and I was told that upon your release in May 2014 that you went back to drugs and crime, notwithstanding having been exposed to the reality of prison life and the existence of a suspended sentence over your head.
29 You attempted to take your own life in 2015, it was a serious attempt, and hence were admitted to North West Mental Health. You were prescribed by them an anti-psychotic drug and given advice as to drug and other counselling. You discharged yourself against advice and did not maintain your prescribed medication and returned to the use of illegal drugs and crime.
30 You are still a relatively young man and you have used your time wisely in custody to date, doing such courses as are available to you and that time in custody that you spent to date, has been quite difficult, which surely would have at least some role in deterring you from future offending. You have been responsive and engaged with the neuropsychologist and you have been seeing a psychiatrist, as I understand it, in prison. There is family support as evidenced by the presence of your mother and father and three of your sisters.
31 It is, I am afraid, very hard to be very optimistic in your case. I can only be quite guarded. As I have said, you were not a teenager when you chose to commit these serious crimes. If you continue to use drugs you will have no prospects of rehabilitation at all, none, but one hopes that the penny might drop as it sometimes does for men even of your age. In a way I suspect the difficulty is that you can do well and maybe even thrive in custody and remain drug free in such an artificial setting and promise the world and probably even believe your promises, as others have, but the real test will come for you upon your release as it always does for a prisoner. It is certainly not too late for you to live a decent and rewarding life in the future but, of course, you are going to have to work terribly hard to achieve that outcome. You will need to move beyond your past, but you can do it. The choice is yours though. The job is ahead of you and it will not be easy but what is the alternative for you? And you have put your finger on this when dealing with Mr Cummins. Drug use, crime, frittering away the bulk of your years in prison? What sort of life is that? That is no viable alternative at all but that is the reality unless you mend your ways. You need to take steps because time is slipping past you, as is your life.
32 I am prepared, though, to find that you have at least some prospects of rehabilitation but I really cannot put it any higher than that and nor could your counsel. I assess your prospects as being quite poor, though I do hope that you prove me wrong in that assessment, but at least there are some prospects of rehabilitation and that is obviously better than none.
Increased burden
33 I turn to your increased burden in custody. Your time in custody has been quite difficult for the reasons spelt out in paragraph 6 of Ms Blair's written outline. It is the longest time that you have been in custody and has had you held at the Custody Centre and more recently at the Melbourne Assessment Prison in virtual lockdown conditions and I take those matters into account in mitigation as I am urged to by your counsel.
Deportation
34 You are a permanent resident but not an Australian citizen and I actually raised that issue with Ms Blair as there had not been a specific submission addressed to me in that regard. I handed down to her a couple of recent cases from our Court of Appeal. Ultimately, she asked me to take into account your concern as to the risk of deportation as increasing your custodial burden and I am prepared to do that. You will not know whether you will be deported or not but, as I understand it, and I accept Ms Blair's description, you had raised with her your concerns in that respect even before I came onto the bench, and with good reason.
35 There are now automatic provisions cancelling visas in circumstances of a person receiving a full time sentence of 12 months or more and a sentence meeting that threshold is inevitable in this sort of case. These issues have been considered in a large range of cases recently, including Da Costa Junior 2016 VSCA 49, Konamala 2016 VSCA 48 and Schneider 2016 VSCA 76, to name but a few, and those cases considered the earlier case of Zhuang 2015 VSCA 96 and the earlier line of authority based on the case of Guden 2010 28 VR. The matter has gone the full circle and despite changes to the Migration Act, the position ultimately has not greatly changed, if at all. I am not allowed to speculate about deportation or whether the Minister will intervene in your case. I cannot know in any way whether you will ultimately be deported. That would be pure speculation as your counsel suggests. However, I am prepared to find that there is at least a tangible risk of deportation in your case, it is it not illusory, and given your circumstance of having been a resident for over 12 years, I am sure the prospect of being sent back to New Zealand and distanced from your family, your children and friends and network would be a disturbing one indeed. So I take into account the increased burden posed by this concern. The uncertainty in this area would be unsettling for you as it would be for anyone and would make your sentence more burdensome. That is the way your counsel is asking me to pay regard to it, and I will. She specifically disavows any reliance on the other limb of the case of Guden, that is the additional punishment represented by deportation and the loss of opportunity to remain in Australia. She submitted that the Court could not have regard to that aspect as it was impossible to know whether you would be deported or not. I accepted her submission in that regard.
Current sentencing practice
36 I have to take into account current sentencing practices and I have looked at the most recent Sentencing Advisory Council Snapshot dealing with the crime of armed robbery, No.186 of 2016. I have also had regard to the Judicial College of Victoria sentencing manual and the table of low range armed robbery sentencing outcomes (32.14.2. 2,) as well as case summaries (32.14.2.4). I have regard also to materials dealing with the crime of robbery, including the Sentencing Advisory Council snapshot No.185 of 2016, and overviews and summaries (at 32.14.3.1 &3). Of those sentenced to prison terms for the crime of armed robbery, and of course not all were, the median sentence is three years, meaning half the sentences are longer than three years and half are shorter. The most common sentence was between two and three years. However, the second most common prison sentence fell between three and four years. It was a close run thing. There was not a large difference between the numbers of people dealt with in the most common and the second most common categories. The third most common prison sentence was four to five years. The fourth most common prison sentence was one to two years. The median prison sentence for robbery was 18 months and the most common prison sentence was between one to two years. So much then for some of the statistical data, that is all it is, but it demonstrates the size of sentences that can be, and often are, imposed for the crime of armed robbery.
37 Here your crimes are clearly not at the lowest level though it is equally plain that they are a well removed from the worst examples of either armed robbery or robbery. I must have regard to your individual circumstances, the circumstances of your crimes and the various mitigatory considerations in your case. This is one reason why other cases and statistics have significant and inherent limitations. There are always a variety of differences between cases and offenders and I must pass an appropriate sentence in your case. Those statistics do not spell out the nature of the offence or the past history of the accused or a host of the individual matters that are so important to the sentencing process.
Sentencing considerations
38 I have taken into account all of the submissions made by your counsel and all of the exhibits that have been tendered before me.
39 Sentencing is really never an easy task. Those who say it is easy are either lying about it or have never done it or have long since ceased doing it and perhaps have forgotten the complexities actually of the task. It is not easy. There are very many matters which must be taken into account by the Court. I must take into account the maximum penalty. Here, 25 years for the armed robbery and 15 years for the robbery. I must pay regard to current sentencing practices and to the impact of your crimes. There are a host of other matters that the court must have regard to as well. Whilst your prospects of rehabilitation are a relevant purpose which I must and I do consider, as I have said, I think your prospects are really quite poor and there are many other sentencing purposes which have a strong role to play here.
40 Punishment is one such purpose. You must be punished for these crimes justly and proportionately. This court must also denounce your conduct, and I do. This was undoubtedly serious, frightening or at least disturbing conduct committed upon totally innocent people. In the instance of Charge 1 and 2, the very same victim being robbed eight days apart. He and the other victim were just going about their job and they were vulnerable individuals given the nature of their employment that had them exposed to you in the early hours of the morning on two occasions or late at night on the other occasion.
41 I must also consider the protection of the community from you. That is a real issue here given your preparedness to commit crimes such as these in the face of attempts to lead you away from crime. I must give community protection some real weight here.
42 I must also pay regard to specific deterrence. That is the need to deter you. Again, that is an important sentencing consideration. It is true that you have been held now in harsh conditions but you have been exposed to prison in the past and, for that matter, the potential threat of prison implicit in the two community based dispositions to no avail.
43 You must be deterred from ever committing such crimes as these again. Courts have tried in the past to deter you with little success. You are no longer the 20 year old before Judge Smallwood who had committed those two serious crimes as an 18 year old but whose rehabilitation seemed so promising. As you grow older and as your crimes become more serious, you must expect that courts will pay less regard to your rehabilitation and afford greater weight to other sentencing purposes including punishment, community protection and general and specific deterrence. So I will try again to deter you. I must, and I must also consider the protection of the community from you.
44 As to the principle of general deterrence, well, it is clearly a very significant sentencing purpose for crimes such as these. That is the need for the courts to deter others who might be considering committing this type of serious offence. The message must be sent from these courts, loud and clear, to those likeminded potential offenders in the community, that this style of offending, I am speaking of soft target robbery or armed robbery, will simply not be tolerated by the courts and it will be met by substantial and immediate punishment. Many years ago banks and building societies were targeted. That is now virtually a thing of the past. The risks are just too high. Security measures routinely engaged at banks make them a far less desirable target. They are harder and riskier to rob. No doubt the potential yield was always the attraction, but the risks are now so high that they are very rarely robbed. Other targets are selected instead. Some of those targets are venues where there might be very sizeable amounts of money such as gaming venues or even TABs. Other targets are at a much lower level in terms of potential cash yield, such as service stations and convenience stores. They are never likely to have very large cash sums at hand, but they are very easy to rob as they are often staffed only by a single worker in the early hours of the morning or late at night. They are open into the late hours because they have to be. The staff by necessity therefore, are vulnerable. They will always have some money. Your offending had no real prospect of any great yield but yield is only one of the matters that I am to consider. The yield or potential yield says next to nothing as to the impact of the crime or its true seriousness. Aggravating features can exist for such low yield offences as yours. Lack of potential yield or actual yield does not signify that the crime is not serious. Soft target armed robberies and robberies are undoubtedly prevalent. Your counsel conceded as much. They are easy to commit, they are hard to prevent and hardly a day goes by without some soft target armed robbery or robbery occurring in this city. General deterrence is a very powerful sentencing purpose in this sort of case.
Offence gravity
45 I must pay regard to the gravity of the offences before the court. Armed robbery is almost always by its very definition a serious offence, but having said that, there are a large range of offence styles and targets and weapons that are employed. Some armed robberies are committed relatively spontaneously with improvised weapons available to hand. Some are very deeply and intricately planned. Well, this armed robbery was certainly not at the lowest level. It was certainly not spontaneous. It was planned, though not intricately. There you are appearing without shirt or mask or any disguise. It reeks of pretty rudimentary planning and desperation. The same really can be said of the robberies. I note that there was headwear, a baseball cap in one and a hoodie in the other, but it was not a particularly effective disguise. There was no actual physical violence or particularly extravagant verbal demand or threat and there was no physical injury and there was the low cash yield.
46 The fact that you were after money for drugs is not in any way mitigatory, as your counsel conceded. There was planning but not a great deal. You obviously selected the venue. You propped open the door on at least one occasion. You had at least a form of “co-accused” on another, and waited on that occasion for other customers to leave. You had a weapon on the last occasion and one that you used to emphasize your demand, slapping it onto the counter twice and then pointing it. So they were not intricately planned but they were still frightening or disturbing events. The offending occurred in the presence of customers on occasions. It was quite brazen and, of course one of your victims was robbed twice by you.
47 How are your direct victims or the customers to know how the event will end? How are you to know what will unfold, a drug affected and desperate man wielding a machete in the vicinity of a customer and a console operator? There is simply no ability for you to predict what staff or other patrons will or might do, or how you might respond if they respond. Of course, I must sentence you for what you have done, not what might have happened but these are inherently dangerous crimes, they can escalate so easily.
48 These crimes were a long way removed from the very worst examples of such crimes, though they were certainly not at the lowest level either. Your counsel argued that the armed robbery fell just below the mid-level of seriousness, and that seems a pretty fair characterisation to me.
49 The robberies themselves did not involve actual physical violence as they sometimes do, but the first robbery had you leap over the counter through the so called protective wires and into the enclosed space occupied by the victim. You were in his immediate vicinity. On the second occasion he recognised you as the person who had acted in that way on the first occasion eight days earlier. Nothing I say about the relative gravity of the various offending should mislead you or anyone else. These were undoubtedly all serious crimes.
Parity
50 Your counsel was not relying on parity of sentence, and for good reason. Like offenders should be dealt with in a like manner. That is easy enough to understand, but disparities compel disparate or different sentences. The authorities make plain enough that there is difficulty when one offender is dealt with as an adult and others were children and subjected to the specialist Children's Court jurisdiction. See the cases of Evans 2003 VSCA 223 and Hussein 2010 VSCA 257. Master X, who was 15 years of age, was dealt with only for a theft. He played no role in the robbery. It was you who vaulted the counter and committed it.
51 You were 26 years of age and well into adulthood. He was a child and one dealt with for a different offence in the Children's Court. The Children's Court jurisdiction is an entirely different regime with a focus unashamedly, and correctly, if I might say so, on rehabilitation and maintaining the child in the family and in the community, and it pays no consideration at all to the principles of general deterrence.
52 Parity of sentence has no pull at all in this case, as your counsel correctly concedes, given the disparities and the differing crimes and the different sentencing considerations that apply in this court. They apply to you because you were not a child. You were an adult and one with a relevant criminal history. I do not ignore the outcome imposed, however, it really says nothing at all about the sentences required in your case.
Boulton
53 Your counsel argued that it was open to impose a term of imprisonment and to place you on a community corrections order at the end of the sentence. Well, sending any person to prison is a matter of last resort for any court. That has always has been the position, and hopefully always will be, and it is clear and always has been to me, that I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition. For instance here, a community corrections order either on its own or in conjunction with a prison term of up to two years.
54 The Court of Appeal in the case of Boulton & Ors v The Queen [2014] VSCA 342 spoke of the change in the sentencing landscape that has been brought about by the availability of a community corrections disposition, one that is now open to the court in conjunction with a significant term of imprisonment being imposed at the same time, but these dispositions are not a get out of gaol free card to be employed for every crime committed by every offender.
55 That decision of Boulton gives direction to judges to revisit their conventional wisdom as to when it is appropriate to actually gaol an individual. The Court of Appeal tells us all that the sentencing landscape has changed very dramatically by virtue of the enactment that leads to this available disposition. They say that sometimes it will be open to place a person on such an order, even for offending that previously might have been met with a substantial (medium) term of imprisonment, but the rider is if it is appropriate in the particular circumstances of the particular case.
56 I have said more than once since that decision was delivered, that the guideline judgment seems to have been greatly misunderstood by very many in the legal profession. I am not saying, by the way, that your counsel misunderstands the import of the case. She does not. Indeed, if I might say so, her written and oral submissions were of the highest standard and her submissions sensibly and realistically advanced on your behalf. However, there has barely been a plea conducted where the decision of Boulton has not been raised either directly or by implication as though that guideline judgment somehow limits the court's sentencing discretion in the individual case. Of course it does no such thing. The reasons in Boulton were of a general nature. There is nothing in that case or the guideline portion of it that compels a sentencing judge to reach a particular conclusion in a particular case, as the Court of Appeal made plain enough in the case of Boulton itself, and has seen the need to remind the profession of in very many cases since, including the cases of Hutchinson, Scammel and McGrath. See also the more recent case of Thorpe 2016 VSCA 158, delivered very recently.
57 It is obvious that not every offender for every crime can or should be admitted to such an order. That is because there are some crimes where the purpose of sentencing cannot be given adequate weight by use of such an order.
58 In this case, as in most cases really, there are some tensions that exist as between the various purposes of sentencing. There is the issue of your rehabilitation. Your prospects are not very strong in that regard. Undoubtedly, this is serious offending. There is obviously a need to adequately reflect denunciation, general and specific deterrence and punishment in any sentence selected by the court. So too community protection.
59 I am told by those above me in the court hierarchy that a Community Corrections Order can provide substantial general deterrent effect and very substantial specific deterrent effect, that it can be very punitive as a disposition. I do not doubt that for one moment.
60 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the Court concludes that the purposes of sentence cannot be achieved by a Community Corrections Order to which specified conditions are attached. Hence I need to pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a Community Corrections Order, either a stand-alone one or one imposed in combination with a prison term of up to two years imprisonment.
61 The Court of Appeal have suggested that Judges ask the following question:
"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
62 Let me say that I am entirely confident that it would not be permissible merely to place you on a community corrections order for offending such as this.
63 There is just no question in my mind as to that fact. Your crimes are clearly too serious. I do not believe that such a disposition on its own could meet all the relevant sentencing purposes and, indeed, your counsel concedes the inevitability of an immediate term. I regret to say that this offending demands that you serve a sizeable term of actual imprisonment.
64 General deterrence, specific deterrence, community protection and punishment are significant purposes here, and so too is there a need to denounce your conduct. I take the view, therefore, that there is no alternative at all other than to impose a term of actual imprisonment upon you, one that you obviously must serve.
65 The question then is whether it is open to me to structure a sentence that would permit the use of a combination type sentence. There is a ceiling of up to two years' imprisonment.
66 Again, I am left in no doubt at all that it would not be open in the sound exercise of my sentencing discretion to pass such a sentence in combination with a community corrections order. In my view, there must be a sizeable prison sentence to actually serve and one which necessarily precludes consideration of a community corrections order. Even had that not been the case and your potential release in a period of less than two years was being contemplated as a possibility (and it is not by the way), there would have been very serious doubts in my mind as to combining such a lengthy sentence with a community corrections order in this case given your past lack of response to such Court orders and the very long gap which would exist between the sentence and entry into the community corrections order.
67 However, ultimately I have no doubt at all that the actual sentence required in this case puts a community corrections order out of consideration altogether as a matter of law.
68 I simply do not accept that a community corrections order in conjunction with a prison sentence of up to two years can pay sufficient weight to the need to denounce, to punish and to deter specifically and generally. Nor can it pay adequate regard to the need to protect the community from you.
Totality
69 I have paid regard to the principle of totality of sentence. I have taken a last look at the effect of the sentences shortly to be pronounced, to ensure that the overall effect is just and appropriate and commensurate with your overall criminality and to guard against a crushing outcome. You have committed three separate offences against two victims. One victim was robbed twice but they were quite separate and distinct crimes and they were each serious offences. The first was more serious in terms of your actions but the second had you robbing the same victim again. The later armed robbery upon a quite separate victim is clearly the most serious of your crimes and will attract the base sentence in this case. There must be a level of cumulation as between sentences imposed for these three separate and serious crimes. They were separate crimes and your victims must not be reduced to meaningless statistics. They were innocent members of staff simply going about their jobs when regrettably, you intruded into each of their lives, committing a serious crime or crimes upon them.
70 I will moderate the degree of cumulation to pay regard to the principle of totality. I still must pass appropriate individual sentences, and I believe it is necessary to fix a not insignificant level of cumulation to recognise the serious separate crimes that you have chosen to commit.
Forfeiture
71 There is an application made for a disposal order and that application is brought pursuant to s.78 of the Confiscation Act. The order is not opposed. In the circumstances I am satisfied of those matters I am required to be satisfied of, pursuant to the provisions of that Act and I order the forfeiture to the State of the property referred to in the schedule and direct that it be held in the way described in the order that has been signed and now pronounced by me. So I have signed that order.
Sentence
72 Mr Curry, would you please stand up? Thank you.
On Charge 1, which is the first charge of robbery, I convict and sentence you to 26 months or two years and two months' imprisonment;
On Charge 2, robbery I convict and sentence you to 18 months' imprisonment;
On Charge 3, which is the armed robbery, I convict and sentence you to
45 months or three years and nine months' imprisonment;
Cumulation
73
The base sentence, therefore, is the 45 months that I have imposed on
Charge 3. I make the following orders for cumulation in relation to the other sentences.
74 I direct that nine months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 2 are to be served cumulatively upon the base sentence, and upon each other.
Total effective sentence
75 That results in a total effective sentence of 60 months or five years' imprisonment.
Non parole Period
76 I fix a period of 40 months or three years and four months during which you will not be eligible for release on parole.
Section 18
77 I declare that the period of 158 days be reckoned as a period of imprisonment already served under this sentence pursuant to Section 18 of the Sentencing Act.
6AAA
78 Had you been found guilty, having run a trial before a jury, I would have sentenced you to a term of seven and a half years' imprisonment. I would have fixed a non-parole period of five and a half years. That statement is to be noted in the records of the court, pursuant to s.6AAA.
79 Just grab a seat for a moment, please. All right, are there any other matters that I need to deal with at all?
80 MS MCLURE: No, Your Honour.
81 HIS HONOUR: Ms Blair?
82 MS BLAIR: No, Your Honour.
83 HIS HONOUR: All right. There is no need for any custody management directions? Your client is coming from custody, obviously. So any other matters that we need to deal with then at all?
84 MS BLAIR: No, Your Honour.
85 HIS HONOUR: Are you going to go down and see him downstairs or not?
86 MS BLAIR: Yes, I will.
87 HIS HONOUR: All right, thanks very much. Look, thanks for your efforts. That completes the matter then, Mr Curry, so Mr Curry can be removed. Thank you.
- - -
0