Director of Public Prosecutions v Dale
[2017] VCC 78
•10 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01542
CR-16-02047
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFFREY PAUL DALE |
| and |
| DANIEL ROBERT NORRIS |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2017 | |
DATE OF SENTENCE: | 10 February 2017 | |
CASE MAY BE CITED AS: | DPP v Dale & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 78 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Piccone | Solicitor for Office of Public Prosecutions |
| For the Accused Dale | Ms E. Turnbull Mr J. Hofman | Emma Turnbull Lawyers |
| For the Accused Norris | Mr C. Pearson Ms S. Depaoli | C. Marshall & Associates |
HIS HONOUR:
1 Geoffrey Paul Dale and Daniel Robert Norris, on 31 January 2017 you each pleaded guilty to Indictment C1610589. You each pleaded guilty to Charge 1, theft of a motor vehicle; Charge 3, attempted armed robbery; and Charge 4, armed robbery. Additionally, Daniel Norris, you pleaded guilty to Charge 2, theft of two kitchen knives from the Coles Supermarket at Altona Meadows, one of which was the weapon used by you in the execution of the attempted armed robbery and armed robbery, the subject of Charges 3 and 4.
2 In addition, Daniel Norris, you were charged with two related summary offences, being commit an indictable offence on bail and resist an emergency worker on duty.
3 The maximum penalty for the offences to which you have pleaded guilty are:
·Theft – ten years’ imprisonment;
·Attempted armed robbery – 20 years’ imprisonment;
·Armed robbery – 25 years’ imprisonment;
·Commit an indictable offence on bail – 30 penalty units or three months’ imprisonment; and
·Resist emergency worker on duty – 60 penalty units or six months’ imprisonment.
4 Tendered as Exhibit A on the plea and read aloud in court was the summary of prosecution opening. In summary, at or about 9.11 am on Thursday, 18 February 2016, you combined to steal a Ford Falcon sedan that was subsequently used in your further offending. This motor vehicle was regarded by its owner as an old classic. The owner had fitted the car with an immobiliser and also with a steering wheel lock. You broke the rear driver’s side window and removed the steering wheel lock and somehow overcame the car immobiliser. (Charge 1)
5 Less than an hour later, you both attended at the Altona Meadows Central Square Shopping Centre in the stolen Ford Falcon sedan. You, Daniel Norris, went into the Coles supermarket and stole two large Stanley Rogers black handled kitchen knives. (Charge 2)
6 Shortly after the theft from Coles, you each changed your clothes and whilst you, Geoffrey Dale, remained in the car, you, Daniel Norris, entered the TAB at the shopping centre at 10.44 a.m. You had disguised yourself by wearing a dark blue and camel coloured jacket with a grey hood pulled over your head. You wore garden gloves and a stocking pulled over your face. You approached the counter that was attended by Ms Richards and you placed a blue sports bag on the counter and, holding the knife, said “Give me all the money.” Ms Richards replied, “No” and retreated to the back of the service area. Shortly thereafter you left the TAB. (Charge 3)
7 Four minutes later at 10.48 am, whilst you, Geoffrey Dale, remained in the car, you, Daniel Norris, ran into the Aldi supermarket. You approached the store manager who was serving a young woman who had her 19 month old son seated in her shopping trolley. You said, “Give it to me” and then, “Give it to me, give it to me now.” The manager opened the till and removed all the cash from the till and placed it into your bag whilst you pointed the knife at him. Suffice it to say, the customer a young mother with her child was scared that you were going to cut her or hurt her infant son. You then approached a female employee of Aldi who was serving another customer at an adjacent register. You pointed the knife at her and demanded “Give me all the cash, all the notes.” She opened the till and removed some money which she handed to you. You then reached past her to remove more money and coins from the till which you also placed in your bag. Despite being shocked by your conduct, the female employee of Aldi observed you get into the passenger seat of the Ford sedan which immediately drove away. Another Aldi employee noted the registration number of that sedan. In total, you stole $2,510.50 from Aldi. (Charge 4)
8 On 29 February 2016, you, Daniel Norris, were arrested by police and during the course of that arrest you fled from the police, were pursued by them and resisted them when they attempted to physically restrain you. (Summary Charge – resist emergency worker on duty) At the time of your offending, you were on bail for dishonesty matters and that is the factual foundation for the summary charge – commit indictable offence on bail.
9 Geoffrey Dale, you were arrested on the same day as your co‑offender and you were each interviewed under caution. You, Mr Dale, gave a predominantly “no comment” record of interview, as did you, Mr Norris.
10 You each have extensive criminal histories which were admitted on arraignment. In particular, Daniel Norris, you have a prior conviction for armed robbery and at the time of committing the instant offences you were on bail and subject to a Community Corrections Order. The last two matters to which I have referred are aggravating features of your offending.
11 Geoffrey Dale, you are 47 of age and have regularly offended against the criminal law since the age of 17. You are an inveterate thief and have served many terms of imprisonment. You are at risk of becoming institutionalised if you are not so already. You were born in Melbourne and raised by you mother. Your father left your mother when you were but an infant and you had no relationship with him during your formative years. Your mother later formed another relationship. You were subjected to domestic violence at the hands of your mother’s new partner. I was told that you commenced to play truant and run away from home when you were aged about 12 years. Your family life was unstable, you moved home on many occasions and changed schools often. You were incarcerated in juvenile detention early in your life and I was informed that at the age of 16 you were incarcerated at Pentridge Prison.
12 A perusal of your criminal history reveals that from the age of about 20 you have been incarcerated on an almost annual basis.
13 I was told that you have a good relationship with your mother who visits you in prison and when she is able to, deposits money into your telephone account so that you may speak to her. You have an adult son aged 23 years but your relationship with him is strained because of your drug abuse and criminal offending. Despite this, you maintain a positive friendship with his mother.
14 I was informed that drug abuse has been a constant in your life and that you were affected by Xanax and other pills at the time of the commission of the instant offending. You suffer from epilepsy and you are plainly in ill health. You are morbidly obese, having gained some 50 to 60 kilograms whilst on remand. I was told that there has been no positive treatment in respect of your condition, save for the prescription of Methadone as an analgesic for the pain that you suffer in your right leg. This arises as a result of an injury to your left knee which causes you to over-compensate to the right hand side of your body. You walk with a crutch but you are so large that the clasp of the crutch that is meant to go around your forearm is simply too small for your arm.
15 You had been released from prison only days prior to the commission of the instant offending. You had bought a wreck of a motor vehicle from a friend, not for the purposes of driving it, but for the purposes of living in it. In effect, you were living in a wrecked car with no means of support at the time that you committed the instant offending.
16 It was properly conceded by Ms Turnbull, solicitor, who acted on your behalf, that the only appropriate sentence was one which involved a head sentence together with a non-parole period. Ms Turnbull emphasised your early plea, your physical condition, your risk of you becoming institutionalised as a result of the sentence that I must impose upon you, the parlous state that you were in at the time of the commission of the instant offences and the fact that the offending occurred over a period of approximately an hour or so.
17 Despite this, Ms Turnbull acknowledged that the offences were serious, although she submitted that they fell towards the lower end of the sentencing scale. I do not agree. Together with your co‑offender, you stole a vehicle for the purposes of getting away from an armed robbery that you planned to commit. Knives were stolen by your co-offender for the purpose of committing the armed robbery. Your co‑offender disguised himself. Your offences were premeditated and committed against soft targets in broad daylight in a shopping centre where people were going about their normal lawful daily business.
18 Ms Turnbull properly acknowledged that the application of general and specific deterrence would play a prominent part in the exercise of my sentencing discretion.
19
Daniel Norris, you are now 34 years of age. You were born in Cairns in Queensland and your mother and father separated when you were about five years of age. You remained with your mother until you were aged about
17 years when you, together with your younger brother, Mark, travelled to Melbourne to live with your father. This proved to be problematic as your father was a violent alcoholic. For some time now you have no real connection with any members of your family.
20 You were schooled to Year 10 level only and have worked at labouring jobs mostly in the building and fencing industries. For a period of three years or so, between 2009 and 2013 you operated your own fencing business and during that time you remained crime free.
21 Like your co‑offender, drug abuse has been a continuing feature of your adult life. You commenced using alcohol and drugs at the age of 14 and have never really stopped this abuse.
22 You have two children, one aged three years and one aged two months, arising out of a relationship with a woman named Rebecca. Rebecca has had her own problems with drug abuse but I was informed that she is now drug-free.
23 You have a prior conviction for armed robbery for which you were sentenced to a term of imprisonment. The instant offences were committed whilst you were on bail and undergoing a Community Correction Order. These are aggravating features of your offending.
24 It was put on your plea that whilst you were in custody, from June 2015 until your release on 26 December 2015, you remained drug-free. However, you soon returned to the abuse of illicit substances and like your co‑offender you were in a parlous state at the time of the commission of the instant offences, so much so that you shared his wrecked motor vehicle, living it in for a couple of nights prior to the commission of the instant offending.
25 During the period of your incarceration from June 2015 to December 2015, you were subject to the rigours of routine lock-downs and the like as a result of the prison riots in June 2015.
26 I was informed by your counsel, Mr Pearson, that you have been charged and dealt with in respect of your role in those prison riots.
27 Whilst on remand, you have been on protection because you have two family members who are prison officers. Whether this will remain so after classification is unknown.
28 Tendered as Exhibit 4 on the plea was a report of David Ball, forensic psychologist, incorrectly dated 20 December 2017. Mr Ball noted that your mental status examination was broadly unremarkable and that your IQ fell within the dull-normal range. Mr Ball set out your personal history and there is nothing of particular note thereafter contained within his report. Your counsel, Mr Pearson, did not rely on any of the principles set out in R v Verdins in support of your plea in mitigation.
29 Mr Pearson relied upon your early plea of guilty, the parlous state in which you found yourself at the time of the instant offending and the three year period in which you were self-employed and remained out of trouble between 2009 and 2013 to found a submission that there are prospects for your rehabilitation.
30 Immediately prior to sentence, Exhibit 5 was tendered on your behalf, being a series of urine analysis reports. These documents support the proposition that while you have been on remand for the instant offences, you have remained drug free. This may reflect on your prospects for rehabilitation but it is to be noted, that you had been drug free in prison immediately prior to the commission of the instant offending and that upon release, you immediately resumed drug abuse.
31 Each of you have pleaded guilty at an early opportunity and are entitled to the benefits that flow from such a plea, being that it is some evidence of your remorse and that it facilitates the course of justice. You each have lengthy criminal histories and are both at risk of becoming institutionalised. You, Mr Dale, are more vulnerable in that respect than your co‑offender, Mr Norris. Whilst your criminal history, Mr Dale, is more extensive than that of your co‑offender, Mr Norris, you are an older man than he. Mr Dale has a prior conviction for armed robbery and committed the instant offences whilst on bail and undergoing a Community Correction Order. Mr Dale, I regard your prospects of rehabilitation as bleak and your prospects Mr Norris as only slightly better.
32 Mr Dale, I entertain concerns for your physical health whilst you are in prison as it appears that the prison authorities are not attending to your extraordinary weight gain and appear not to have investigated it to any adequate extent.
33 General and specific deterrence in respect of each of you must be the paramount sentencing considerations owing to the nature of your offending and your antecedents. However, I take into account your pleas of guilty and the time at which they were entered as well as the risk of you becoming institutionalised as a result of the sentence that I am obliged to impose on each of you.
34 By these sentences, I must punish each of you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you and your offending, I will sentence you each as follows.
35 Mr Daniel Norris, will you stand up. I sentence you Daniel Norris as follows:
On Charge 1, 12 months’ imprisonment.
On Charge 2, three months’ imprisonment.
On Charge 3, two and a half years’ imprisonment.
On Charge 4, four years’ imprisonment.
On the summary offence, commit an indictable offence on bail, I sentence you to one month’s imprisonment.
On the related summary offence, resist emergency worker on duty, I sentence you to one month’s imprisonment.
36 I order that six months of the sentence imposed on Charge 1, together with one month of the sentence imposed on Charge 2, together with 12 months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 4. This results in a total effective sentence of five years and seven months' imprisonment and I fix a period of three years and six months’ imprisonment before you will become eligible for parole.
37 I declare that you have spent 333 days by way of pre‑sentence detention.
38 I cancel any licence or permit held by you under the Road Safety Act 1986 and I disqualify you from obtaining any such licence or permit for a period of two years.
39 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to nine years’ imprisonment with a non-parole period of six years’ imprisonment. Please be seated.
40 Mr Dale, will you please stand up? Take your time. Mr Dale, I sentence you as follows:
41 On Charge 1, 12 months’ imprisonment.
On Charge 3, two years and three months’ imprisonment.
On Charge 4, three years and nine months’ imprisonment.
42 I order that six months of the sentence imposed on Charge 1 and nine months of the sentence imposed on Charge 3, be served cumulatively upon each other and upon the sentence imposed on Charge 4. This results in a total effective sentence of five years’ imprisonment and I fix the period of three years’ imprisonment to be served by you before you will become eligible for parole.
43 I declare that you have spent 347 days by way of pre‑sentence detention.
44 I cancel any licence or permit held by you under the Road Safety Act 1986 and I disqualify you from obtaining any such licence or permit under the Act for a period of two years.
45 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to eight years’ imprisonment with a non-parole period of five years’ imprisonment. Now, if it is easier for you to remain standing, you stay there. If it is easier for you to sit, sit. There are only a few more seconds to go. All right? Now, there were applications for a disposal order and an order for compensation and I have made those orders and I hand down three copies. Could you mark Exhibit 5 for me please? Are there any other matters that need to be attended to?
46 MS PICONE: Nothing further, Your Honour.
47 HIS HONOUR: Thank you. Are the figures correct in terms of cumulation and the like?
48 MS DEPAOLI: Yes, they are for Mr Norris, Your Honour.
49 MS PICONE: They are correct, Your Honour.
50 HIS HONOUR: Thank you very much. Would you remove the prisoners please?
51 OFFENDER DALE: Thank you, Your Honour.
52 HIS HONOUR: Thank you very much, Mr Dale. We'll stand down until 10.30.
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