Director of Public Prosecutions v Dertilis

[2018] VCC 379

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00323

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON DERTILIS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 14 February 2018 (trial); 21 March 2018 (plea)
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Dertilis
MEDIUM NEUTRAL CITATION:	[2018] VCC 379

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Plummer	OPP
For the Accused	Mr N Goodfellow	Stary Norton Halphen

HIS HONOUR:

Introduction

1Simon Dertilis, you have been found guilty of one charge of Armed Robbery contrary to s 75A of the Crimes Act 1958. The maximum penalty being
25 years imprisonment. 

2You have also admitted your Criminal Record.

Circumstances of the offence

3Consistent with the verdict of the jury, the circumstances of the offending may be summarised as follows;

4On 2 April 2016, at approximately 12.30 pm, you Simon Dertilis entered a Dan Murphy store at 150 Hogans Road, Hoppers Crossing. 

5Emma Pearson, the assistant manager of the store, noticed you when you entered. She watched you walk down the middle aisle and then move across to the spirits aisle at the far end of the store. Upon observing you, Ms Pearson telephoned Warwick Berry a duty manager at the Dan Murphy's store, and also working on that day. Ms Pearson conveyed to Mr Berry that there was a person in the store who they ‘might just need to keep an eye on’.

6Believing that you were acting suspiciously, Ms Pearson went towards the back of the store and observed you near the spirits section. She asked ‘can I help you find something?’ You replied ‘no’. In evidence Ms Pearson stated that you appeared unsettled.

7Ms Pearson then observed you pick up a bottle of whiskey and begin to conceal the bottle down your pants. As you were doing this you threatened Ms Pearson by saying words to the effect of ‘you can't touch me’. While still in the process of concealing the bottle, Ms Pearson noticed that you had something in your hand. She gave evidence that the object in your hand resembled a box cutter as that is something that other staff use at the store. She described a silver and blue metal knife; the base of the knife in your hand she described as blue and the part near your fingers as being silver. She also gave evidence that the knife filled your hand so that it was greater in size than what a spoon or a pen would be however as noted above, it looked to her like the box cutter that other staff use in the store.

8By this stage Warwick Berry, after observing what was occurring on the CCTV monitors located at the front of the store, walked into the aisle where you and Ms Pearson were standing. Mr Berry had also observed you take the bottle of whiskey as he was observing you on the CCTV monitor. After you began to walk down the aisle in order to exit the store, Ms Pearson called 000.

9Mr Berry walked down the aisle towards you. You confronted him as you were making your way to the front of the store. Mr Berry noticed you covering the bottle of whiskey with your shirt as you concealed it down your pants. Mr Berry stood facing you for a moment and then noticed you reach into your pocket for something. He saw you holding an object in your right hand which he believed was a knife. You then said to him words to the effect of ‘if you stay there I will use it’. He then said you flicked open the knife and that it had a blue handle and a silver tip. He also described it as a box cutter.

10Upon seeing the knife, Mr Berry backed away from you and grabbed a bottle of wine beside him as a reaction in order to protect himself. You then walked past Mr Berry towards the front of the store. He described your demeanour as quite aggressive. You walked through the register area and out the front of the store.

11Lisa Tzuntzurkas, a sales assistant, was serving customers on one of the registers at the front of the store. She heard Ms Pearson yelling words to the effect of ‘put the bottle back and get out’. She also heard Mr Berry and you exchanging words. The words she heard were largely difficult to decipher however, she stated that she heard you say to Mr Berry words to the effect of ‘come at me’ and ‘fuck off’. Ms Tzuntzurkas also noticed what appeared to her to be a knife in your hand. She also described it as a box cutter.

12At approximately 8.30 am on 3 August 2016, you were arrested at your home in Laverton. You were taken to the Altona North Police Station and interviewed.  In that interview you said amongst other things: that you did not produce a knife or take alcohol; that you did not take anything; that you did not assault anyone; and that you did not threaten anyone. You stated that you had a blue pen with you at the time.

13At trial, you admitted that you had stolen the bottle of alcohol but maintained that you did not have a knife with you.

Objective seriousness of the offence 

14I am satisfied that you entered the Dan Murphy store with the intention of stealing alcohol. I note that in your record of interview you admitted that you entered the store without any money. I accept that you did not enter the store to commit an armed robbery but in order to steal. However, you also entered the store with a box cutter concealed within your clothing.

15As you were attempting to steal the bottle of alcohol, you made a verbal threat to Ms Pearson. You produced the knife as you were still attempting to conceal the alcohol in your clothing. As you were attempting to leave and were confronted by Mr Berry you again said threatening words to him with reference to the knife.

16While you may have entered the store initially with the intention of simply stealing the bottle of alcohol, you came prepared in the event that if you needed to use the knife, you would. Clearly that is what eventuated.

17This offending occurred in the middle of the day at a busy Dan Murphy store with a number of customers and staff present. This is evident on viewing the CCTV footage. You produced a knife to Ms Pearson and threatened her when she was simply doing her job in confronting you as you began to steal a bottle of alcohol. You then produced the knife again and threatened Mr Berry as you were leaving.

18Unlike other conventional armed robberies of this type, you did not use the weapon to initially make a demand, rather you produced the weapon at the time of making a threat to Ms Pearson and as you were taking the bottle of alcohol.

19While this offence could not be categorised at the high-end of this type of offending, it still would have been a frightening experience for those employees who were confronted by you. Ms Pearson said in evidence that you were aggressive and she felt scared. As noted, Mr Berry also found you to be aggressive and, upon being threatened by you with the knife in hand, he reacted by grabbing a bottle of wine in order to protect himself. However although this occurred in the public area of a busy Dan Murphy store, I note that there is no evidence of other customers viewing the event or being aware of it occurring. Further, the store was not closed as a result of the offence.

Personal circumstances

20You are now 43 years of age. You were 41 at the time of the offending. You were born and raised in Melbourne. You have a brother and a sister however you have no relationship with your brother and your sister passed away in November 2017. Your parents separated when you were eight years of age and you remained living with your father. It was submitted that your father was extremely physically abusive towards you and that you were regularly threatened and assaulted by him.

21As a result of the volatile relationship with your father you left home and became homeless for a number of years from ages 12 to 19. You then returned to live with your mother and you have maintained a close and supportive relationship with her.

22You completed year 11 at high school and have also completed short courses in literacy and picture framing. For the past six years you worked as a picture framer at a store at the Queen Victoria Market. Prior to that you have worked as a factory hand and with an auto mechanic.

23As a result of your sister's death, her five children now reside with your mother in Werribee. It was submitted that before you were remanded in custody for this offence, you were assisting your mother in looking after your sister's children.  You intend to move back in with her when released to further assist her in the care of those children.

24You have been in a relationship with Michelle Haynes for the past eight years.  For the past three years you have resided together at a property in Laverton.  Prior to this time you had experienced long periods of homelessness.

25You have had a long history and battle with drugs. Following an all familiar pattern you commenced using cannabis as a teenager and progressed to heroin in your early twenties. You have also used speed but heroin has been your primary drug of addiction until you commenced the methadone program in 2016. It is clear from reviewing your criminal history that drugs have played a prominent part and most likely have been the motivator behind a large number of dishonesty offences and other offending.

26It was submitted that you do not suffer from any physical health problems, however from a psychological perspective you are struggling with your current imprisonment.

Sentencing considerations

27In cases of armed robbery, deterrence both general and specific are primary sentencing considerations. Further, given the brazen nature of your offending on this occasion which involved attending a busy Dan Murphy liquor store in the middle of the day whilst carrying a weapon, denunciation of your conduct and just punishment are also relevant considerations.

28As noted above while this example of armed robbery is not at the high end, armed robbery is a serious offence as reflected by the maximum penalty.

Prospects of rehabilitation

29Your prior criminal history exhibits a number of relevant offences. Most recently, in 2014 you spent 208 days in custody in relation to a number of offences including possessing a controlled weapon without excuse. That sentence also included a breach of a suspended sentence order where the original offending included shop theft, unlawful assault and carrying a prohibited weapon. You have a number of other dishonesty and drug-related offences dating back to 1994, including dishonesty matters in New South Wales where you received terms of imprisonment.

30In approximately 22 prior court appearances you have been given a number of opportunities to address your issues including community based dispositions and suspended sentences. You have breached most of these previous orders.

31In all the circumstances your prospects of rehabilitation could not be considered as good. So much was conceded by your counsel. However I note that you have been on the methadone program since 2016 and do not have any significant physical or mental health issues. You are now 43 and at an age where you have the capacity to make choices to turn your life around.

32It was submitted that your commitment to offering your mother assistance in caring for your sisters children upon your release has been a significant motivator for you to finally change your life. That, together with your sustained period on the methadone program demonstrates that you now have good reasons to stay on track. You also have a good work history despite your struggle with drugs. As such, in my view a longer than usual period on parole would be of benefit to you to assist you in your commitment to change.

Sentence

33Mr Dertilis, please stand.

34Simon Dertilis, on the charge of armed robbery you are convicted and sentenced to 2 years and 3 months imprisonment.

35I direct that you serve 14 months imprisonment before becoming eligible for parole.

36Pursuant to s 18 of the Sentencing Act 1991, I declare that 37 days be reckoned as the period of the period of imprisonment already served under the sentence I have imposed. That does not include today.