Director of Public Prosecutions v Dawson (a pseudonym)
[2019] VCC 380
•28 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM DAWSON (A PSEUDONYM) |
‑‑‑
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 March 2019 |
| DATE OF SENTENCE: | 28 March 2019 |
| CASE MAY BE CITED AS: | DPP v Dawson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 380 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – plea of guilty
Cases Cited: Boulton v The Queen; Clements v The Queen; Fitzgerald v The
Queen (2014) 46 VR 308; R v Orlikowski (unreported, Victorian
Court of Appeal, Winneke P, 16 October 1997)
Sentence: Community Correction Order of two years
Section 6AAA declaration: four years’ imprisonment with a non-
parole period of two years‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Bruhn | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M Casey | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Adam Dawson[1], you have pleaded guilty before me to one charge of armed robbery. You were 21 years of age at the time of this offence. You are now 22.
[1] Adam Dawson is a pseudonym
2Exhibit A on the plea in mitigation was the prosecution opening on the plea. I incorporate that document as part of my reasons for sentence. However, I will briefly summarise the offending that has brought you before the court.
3At the time of these offences you were living in Cheltenham with a friend, Gemma Cregan. She is referred to as a co-accused in this matter, although I note she was charged only with handling stolen goods.
4At around 10:30pm on Friday 6 April 2018 the victim's employer, Mr Yiang Zhang received a text message from a mobile number ending in 449 placing an order for 250 cream chargers to be delivered to an address in Cheltenham. About an hour later, the victim, Mr Weicong Zheng arrived at that address. A matter of days before he had commenced working as a delivery driver for “Cake Emergency”, a business specialising in the delivery of cream chargers around Melbourne.
5Upon arrival at the address Mr Zheng called the phone number. You and your co-offender came out to his car and spoke to him. Moments later a disagreement ensued between you and Mr Zheng over the price for the cream chargers. You maintained that the price was $185.00, while the victim asserted that it was $210.00. There was a brief discussion between yourself and Ms Cregan, after which you produced a kitchen knife which was about 20 centimetres long. You held it towards the victim through the open window of his car. At the same time you said words to the effect of, "just give me all of it - all this stuff".
6The victim complied and handed over four boxes of cream chargers which were on the front passenger seat. He then drove up the street and called his boss to complain. The victim then rang 000 and the police arrived.
7The next day, on 7 April, the police executed a search warrant at your address. You and your co-offender were arrested. You were taken to the Moorabbin Police Station for a record of interview. Without going into the full particulars of the content of the record of interview, suffice to say that you made a full and frank confession.
8You admitted to the police that you wanted to use the cream chargers for the purpose of inhaling them. The tenor of the record of interview reflects an attitude of compliance and cooperation. Furthermore, in the course of the record of interview you expressed your remorse for having been involved in the offending saying:
"I don't deny I've done the wrong thing. I’ve just – yeah, I wasn't – I wasn't thinking clearly. I obviously didn't go out with the intention of doing it."
9When you were asked by the police whether you were remorseful, you responded by saying:
"Yeah. A hundred percent, like it's completely not of my nature. You know, I've now gone and I wouldn't say I've put someone's life at risk but I've put their livelihood sort of at risk. Like, that's their job, like everyone has a job, you know, we all do, you know, and he shouldn't have to face something like that during his job..."
10While no Victim Impact Statement was provided to me, I was taken in the course of the plea in mitigation to the witness statement of Mr Zheng. In that statement he says he felt nervous and scared at the time of the armed robbery and that he was afraid that you and your co-offender would hurt him. He also stated that he didn't want to do his job anymore and that that was the first time that anything like that had ever happened.
11On 10 October 2018 you entered a plea of guilty to the current charge. I find that it is an early plea in the circumstances and one consistent with the desire to facilitate the administration of justice. Given your repentance displayed in the record of interview, I also find that the plea of guilty is reflective of remorse.
12Before me you also admitted your prior criminal history. For the purposes of the sentencing exercise today, these matters have little, if any, relevance. In March 2017 you appeared at Moorabbin Magistrates' Court for various charges including criminal damage. Those matters were dealt with by way of a good behaviour bond. While it was submitted by your counsel that this offending breached the good behaviour bond; that certainly does not accord with my reading of your criminal record.
13As was properly conceded by your defence counsel, the offence of armed robbery is a serious one. In assessing the objective gravity of the offending here, I must consider the fact that the offending was against a soft target, it being late in the evening and the weapon used was a kitchen knife.
14On the other hand, as was conceded by the learned Crown prosecutor, there are some unusual aspects to the offending here. Firstly, your initial intention was clearly to pay for the order. This was evidenced by the fact that at around 9:20pm that evening you had withdrawn $200.00 cash from your bank account. Secondly, the resort to the use of the knife as a weapon was a spontaneous reaction to the disagreement over the price quoted. These are matters which to my mind lower your moral culpability and place the offending at the lower end of the scale of gravity.
15This being an offence of armed robbery, I do bear in mind the comments of President Winneke in Orlikowski, being:
"One has to be careful, I think … not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims..."[2]
[2]R v Orlikowski (unreported, Victorian Court of Appeal, Winneke P, 16 October 1997) 4
16In light of the concession made by the prosecution as to the somewhat unconventional nature of this armed robbery, such principles must be tempered against the ultimate submission that an entirely non-custodial disposition was open in your case.
17In support of Ms Casey's contention that you were an appropriate candidate for such a disposition, she placed reliance upon the following factors:
1)You have been on bail since 24 April 2018. On that date you were placed on the CISP[3] program and your compliance with the program has been exemplary. In the final CISP report dated 13 August 2018, the author of that report stated as follows:
[3] Court Integrated Services Program
"To Mr [Dawson]'s credit he has taken full advantage of his time on CISP. Mr [Dawson] has presented as motivated to engage in treatment to address his drug use to ensure a better future for himself. He reports to have maintained abstinence from drugs and reports staying away from negative associates. Mr [Dawson] has also continued to maintain his employment throughout CISP."
2)That you are a youthful offender, having turned 22 in November last year, some seven months after the commission of the offending.
3)The fact that you are now reunited with your family having been bailed to live with your mother and siblings. Your mother suffers from renal failure and requires hospitalisation at times. You have provided support and assistance to her throughout this time. While she was not present at Court on the plea in mitigation, she remains supportive of you and will clearly seek to foster your rehabilitation.
My view is that your prospects for rehabilitation are very good. I say this because of your youth, your attitude to the offending in the aftermath and the support available to you in the form of family and continued employment.
4)Ms Casey also relies upon the fact that you have been gainfully employed for the entire time that you have been on bail. I received on the plea a letter from Mr Ben Pemberton, the factory manager at Geordi Stainless, your employer. He describes you as reliable, trustworthy and a valuable part of the team.
5)Under the auspices of the CISP program you were required to attend upon your general practitioner, Mr Alex Vergun, to combat your mental health issues. I was told that at the time of the commission of this offence you were abusing prescription drugs, being Valium and Xanax. As I indicated on the plea in mitigation, I was of the view that I would be assisted by a report from Dr Vergun, however, unfortunately one was not available in the time between the plea and the sentence.
6)It was submitted by your counsel that you have had ample time to reflect upon the seriousness of your conduct. Indeed, immediately after the commission of the crime, you were remanded into adult custody where you spent 17 days at the MAP and the MRC. Not surprisingly, you were petrified by your experience of being in an adult gaol environment. It seems from what I was told on the plea in mitigation that gaol has indeed had a salutary effect upon you.
Mr Luke Karakas wrote a character reference on your behalf. He visited you during your period on remand at the MRC. He says that during that time you expressed your remorse on a number of occasions about what you acknowledged was dishonest and violent behaviour. He also observes that since your release from remand you have made “significant positive changes in order to try and remove yourself from a cycle of antisocial behaviour”.
18In essence, your counsel relied upon the combination of these factors which would enable the imposition of an entirely non-custodial disposition. Emphasising the punitive nature of a Community Correction Order, she relied upon the Court of Appeal authority in Boulton v The Queen[4]. In that vein, I have had regard to that decision. In particular paragraph [131] wherein the Court observed as follows:
"It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation."
[4]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308
19Furthermore, in light of the prosecution's concession that in your case an entirely non-custodial disposition is open, I had you assessed by Corrections. They have assessed you as suitable.
20I turn now to your personal circumstances.
21As already noted, you are now 22 years of age. Your parents split up when you were very young. Your mother re-partnered and you have three younger half-sisters. As for your education, you completed Year 10 at Cheltenham Secondary College. At Prahran Community Learning College, you then completed Years 11 and 12.
22From 2015 to 2018 you were living with your then girlfriend. That relationship dissolved shortly before the offending. Indeed, in the record of interview you told the police that not long before the armed robbery you had “lost someone that you loved”.
23You have a good work history for a young person. You have successfully completed 18 months of a two-year Certificate III in Metal Fabrication. In 2017 you worked as a house painter after having completed a painting apprenticeship at Holmesglen College. In January 2018 you commenced working at Geordi Stainless in metal polishing fabrication. As I have already observed you have been working at Geordi Stainless whilst on bail for this offence.
24Mr Dawson, would you please stand.
25In relation to Charge 1, being a charge of armed robbery, I convict you and impose a Community Correction Order for a period of two (2) years with the following conditions:
·that you report to Moorabbin Community Corrections no later than 4pm on Monday 1 April 2019 and attend supervision appointments with them as required;
·that you complete 200 hours of unpaid community work;
·that you receive treatment and rehabilitation for your mental health; and
·that you receive treatment and rehabilitation for both drug and alcohol abuse.
26Pursuant to section 48CA of the Sentencing Act 1991 (Vic) I order that hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
27Pursuant to section 6AAA of the Sentencing Act were it not for your plea of guilty, I would have imposed a sentence of four (4) years' imprisonment with a non-parole period of two (2) years.
28Pursuant to section 18(4) of the Sentencing Act, I declare 17 days' pre-sentence detention and order that such declaration be noted in the record of the court.
29I make the order for forfeiture and disposal as sought by the prosecution.
30I decline to make an order pursuant to 464ZF of the Crimes Act1958 (Vic). I note that it was opposed.
31You may be seated, Mr Dawson.
32Before Ms Casey comes to give you a document to sign I just need to explain to you - you understand that if you breach the order by further offending or the conditions imposed you can be brought back before me for re-sentencing for this offence. You understand that?
33ACCUSED: Yes, Your Honour.
34HER HONOUR: All right. You consent to having the order imposed upon you for that two-year period with those conditions?
35ACCUSED: Yes, Your Honour.
36HER HONOUR: All right. Very well, yes, I will have that order be brought to Mr Dawson so he can sign it, Ms Casey.
37Yes, very well, we will arrange for an order for that to be - you may come out of the dock, Mr Dawson.
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