Director of Public Prosecutions v Diamantopoulos

[2017] VCC 408

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02270
CR 16-02271

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL DIAMANTOPOULOS
LEWIS WATTS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2017
CASE MAY BE CITED AS:	DPP v Diamantopoulos
MEDIUM NEUTRAL CITATION:	[2017] VCC 408

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hammill
For Accused Diamantopoulos	Ms R. Cameron
For Accused Watts	Mr V. Peters

HER HONOUR:

1Joel Dean Diamantopoulos, you have pleaded guilty before me to one charge of armed robbery, one charge of possessing a drug of dependence and the summary charge of committing an indictable offence whilst on bail which has been uplifted to be heard in the County Court with your assent, pursuant to s.145 of the Criminal Procedure Act.  Lewis Noel Watts, you have pleaded guilty one charge of armed robbery.  You have both admitted prior convictions.

2The facts underlying your offending are as follows:

3On the night of 26 September 2016 the two of you drove to the United service station in Ballarat Road, Albion, close to where you were living, on small motorcycles, wearing helmets and carrying bags.  At that time you made legitimate purchases at the service station, you, Mr Watts, going inside, whilst you, Mr Diamantopoulos, remained outside on the bike.  You, Mr Watts, purchased a Rockstar energy drink using your NAB payWave debit card in your name.  This purchase occurred just after midnight on that night. 

4At about 2.40 am, about two and a half hours later, the two of you returned to the service station wearing the same clothing and bike helmets with the visors closed.  You, Watts, were armed with a machete, and you, Diamantopoulos, with a nail gun.  The two of you had concealed those weapons. 

5The lone attendant, Sandeep Goud, recognised you, Watts, from your purchase earlier that night and buzzed the two of you inside.  Once inside, you both produced your weapons.  You, Watts, jumped the counter and threatened
Mr Goud with a machete, demanding he open the till.  You, Diamantopoulos, stood in front of the till and pointed the nail gun at Goud saying, "Don't move, I will shoot you."  Mr Goud opened the till and you, Watts, stole about $240 from it before demanding cigarettes.  You were given approximately 14 packets of cigarettes worth over $300.  The two of you then left the store, heading in an easterly direction on your motorbikes down Ballarat Road. 

6Your actions in the service station underlie Charge 1 on the indictment, armed robbery.

7Police then attended and ascertained that your NAB debit card, Watts, had been used in the earlier purchase, and they obtained a search warrant after a LEAP check showed that you lived a short distance from the service station.  Also, police had been called on several occasions to the address following reports of two men driving dirt and quad bikes on the road. 

8At about 7 am the following morning police executed a search warrant at the residence where the two of you were living.  This was a house owned by your parents, Mr Diamantopoulos, Mr Watts living in a bungalow at the rear of the premises. 

9At the property police seized your NAB debit card, Mr Watts, a black backpack, clothing and bikes and six unopened packets of cigarettes.  They also discovered a plastic Ziploc bag containing about 5.5 grams of cannabis which was found in your possession, Mr Diamantopoulos.  Soon after, the two of you were taken back to the station.

10Statements were obtained from various people and a further machete matching the machete used in the offending was found under the kitchen sink at your home, Mr Diamantopoulos. 

11Witnesses from whom statements were taken noted that the two of you had gone out earlier in the night and returned with Rockstar energy drinks and were seen later in the lounge room listening to music and dancing, several hours later.

12The two of you made records of interview with police, but both of you denied being involved in this offending.

13At the time of this offending, you, Mr Diamantopoulos, were on bail.  Your possession of the cannabis underlies Charge 2 on the indictment and the fact that you were on bail underlies the summary offence I have referred to.

14Despite denials of both of you at being involved in this offending, the matter was resolved at committal conference stage and it was conceded by the prosecution that these are early pleas.  The two of you have remained in custody since your arrests on 27 September 2016. 

15The maximum penalty for armed robbery is 25 years' imprisonment. This being a small quantity of cannabis.  The maximum penalty is five penalty units and the maximum penalty for committing an indictable offence whilst on bail is
30 penalty units or three months' imprisonment.  No victim impact statement was tendered.

16I now turn to the personal circumstances of each of you, beginning with you, Joel Diamantopoulos.

17You are now 28 years of age.  Your mother and father raised you in Cranbourne till you were 12 and then the family relocated to Echuca.  You told psychologist, Dr Aaron Cummins, whose report dated 5 April 2017 was tendered on the plea, that your father worked as a builder, your mother worked in accountancy and bookkeeping and you had a good relationship with both parents.  When you were 12 you were present in the house of an older friend where there was a home invasion, and this friend was tortured and nearly killed after being stabbed with scissors and a knife and a shotgun forced down his throat.  This caused you some trauma.  Then, when you were 15, your younger brother was diagnosed with lymphoma and was seriously ill for this time, during which the family suffered a great deal financially in order to pay for his treatment.  This was also, according to what you told Dr Cunningham, traumatic for you, believing it was you who should have suffered the cancer, Dr Cunningham stating:  "He stated this in the context of believing he was the more worthless of the two children."  Your brother fortunately did recover, although you do not have a close relationship with him.

18You left the family home when you were 16, living with friends and girlfriends.  From the age of 17 you had a relationship for about six or seven years which, however, involved mutual drug abuse and ended because of your excessive drug use.  You then had another relationship which ended three years ago and have been in a current relationship for two years.

19You left school in Year 9 and completed a carpentry apprenticeship with your father and then began subcontracting as a carpenter.  You have operated your own business, Jimmy's Carpentry Services, for more than ten years, and you told Dr Cunningham that you love working in carpentry.  At the time of this offending you were in fact working five days a week in your own business setting up houses in the local area to lock-up stage, and Mr Watts was being employed by you as a labourer.

20You began using cannabis when you were ten, and you used it regularly from the age of 13, and continued to smoke up to the time of your arrest on a fairly regular and heavy basis.  You used amphetamines from the age of 14, injecting the drug, and then began using methamphetamine or ice when you were 18.  You have been using, and were using ice up to the time of your arrest on a daily basis.  You also told Dr Cunningham you used other drugs including ecstasy, acid and alcohol.  However, you said that your main dependences were cannabis and methamphetamine.

21Several years ago you attended a detox in Heidelberg, which was not successful, and have told Dr Cunningham you would like to get support to get off drugs when you are released.  The problem is for you, Mr Diamantopoulos, that you have prior convictions and you have been given a number of opportunities by the courts to get off drugs via the sort of support you have spoken about.

22I am turning now to your prior criminal history which began in 2007, when you, in that year and then in 2008, attended court in relation to driving offences.  There was nothing further until 2012, when you appeared before the Sunshine Magistrates' Court on charges of recklessly causing injury, driving whilst your blood alcohol was over .05 and fail to answer bail, when you were placed on a community corrections order for 12 months with conditions that you attend for treatment for drug and alcohol use.  Then in May 2015 there was a contravention of that order, which was confirmed. 

23You appeared again in court in May 2013 on charges of intentionally causing injury, contravening a family violence intervention order, driving whilst disqualified, fail to answer bail and speeding charges, and were again placed on a community corrections order, this time for a period of 18 months, it also including a condition that you attend for assessment and treatment for drug use. 

24On 12 December 2013 you received a suspended sentence for unlawful assault and cultivating a narcotic plant.

25On 19 February 2016 you were placed on two community corrections orders for driving offences, significantly, one of them being fail oral fluid testing to within three hours of driving, which relates to suspected drug influence while you are driving, fail to answer bail, resisting an emergency worker, further driving offences and stating false name and address.  You were on this community corrections order at the time you committed this offending.  You have remained in custody since your arrest for this offending.

26IQ testing was administered by Dr Cunningham with a result of 79, which is considered to be quite low.  I have some difficulty accepting that level.  It seems to me you were capable of completing the academic portion of your apprenticeship and to go on and run your own business.  I do not accept that you have any particular intellectual difficulty.

27Dr Cunningham stated, "In my opinion, disengaging with drug abusing peer associations is a significant factor in reducing his", (that is your), "risk of re-offending.  Mr Diamantopoulos is able to maintain stable periods of employment.  Ceasing abusive drugs and associated with negative peers and maintaining full family support and returning to employment will reduce his risks and improve his prospects for rehabilitation."

28You were diagnosed also by Dr Cunningham as suffering from a major depressive disorder relating to the trauma you experienced when you were 12 and in relation to your brother's illness.  However, all of that was ten to 12 years ago, Mr Diamantopoulos, and in the meantime you have been given a lot of opportunities by the court of which you have not taken advantage and gone on to offend in an ever more serious way. 

29Armed robbery, in my view, represents a serious escalation of your offending pattern.  I accept that when you carried out this offending you were under the influence of methamphetamine as I was informed by your counsel.  It would appear the reason for undertaking this offending had to do with something about needing cigarettes because your father was no longer paying for them.  I have no doubt that made enormous sense to someone who was under the influence of ice at the time, but in the end it is a very pathetic reason for committing this serious and traumatic offending and my concern is that you have simply not attended to your drug use over a very long period of time, so that in the end you have offended in this most serious way. 

30I should note your offending occurred in relation to a soft target, that is, a lone attendant at a petrol station.  This sort of offending against these sorts of targets is extremely prevalent and that is a feature that a court must take into account in sentencing you.

31I accept that whilst in gaol you have performed creditably.  You are placed in one of the cottages at the Melbourne Remand Centre, which is a sign of trust.  You are working in the metal shop five days a week.  Apart from that, on the weekends you are in lockdown 19 hours of those days.  I accept that you have not resumed amphetamine use whilst in prison, and I accept that this has been important for you, that you are a person who has good qualifications, a supportive family, who attended court, a home to go to, work to go to with your father when you get out, and that overall, if you can attend to your drug use, you have good prospects of rehabilitation, but, in my view, you have offended simply once too often, and as I have said, it is a marked escalation in the offending that you have engaged in before. 

32Your counsel submitted that I should consider dealing with you by way of a combination of a community corrections order and gaol disposition, but, in my view, the offending is too serious and I will deal with you by way of a term of imprisonment.  However, I do take into account in sentencing you your early plea of guilty, saving the community the time and the expense of a trial and the witnesses the trauma of giving evidence.  I accept you come from a supportive family.  I accept the mitigating factors of your trade, your prospects of employment and the support when you get out, and I take those into account in sentencing you and in imposing a term of imprisonment which will have a greater than usual difference between the head sentence and the minimum term.

33Could you stand up, please, sir. 

34I believe that I indicated three years.  I have revised that.  I think it is a little much having gone through the material before.

35On the charge of armed robbery, you are sentenced to 30 months' imprisonment, that is two and a half years.

36On the charge of possession of a drug of dependence, you are fined $100.

37On the charge of committing an indictable offence on bail, you are sentenced to one month's imprisonment.  I should add that I understand that charge relates to a charge of recklessly causing injury relating to a charge in 2014 which has yet to be resolved but for which you were on bail at the time of this offending. 

38That gives a total effective sentence of 30 months, and I order that you serve a minimum term of 17 months before becoming eligible for parole.

39What is the PSD, please?

40MR PETERS:  One ninety-two days.

41MS HAMMILL:  One hundred and ninety-two days, Your Honour, excluding today.

42HER HONOUR:  I declare that 192 days of this sentence have already been served by way of pre-sentence detention.  All right.  So what are we looking at?  Yes, you have probably got about ten or 11 months to go, I think, sir.  All right, have a seat.  Thank you.

43I now turn to your personal history, Lewis Watts.  Could you stand up, please, sir.

44You are now 34 years of age.  I received a report from psychologist, Warren Simmons, dated 29 March 2017, outlining a background that, like that of your co-accused, Mr Diamantopoulos, revealed good family support but some trauma along the way.  Like Mr Diamantopoulos, you too have been in the grip of an ice addiction for some years.

45Your parents separated when you were five.  Your father had been a school teacher, but he has a history of severe and poorly controlled asthma and is now employed as a gardener.  Your mother works as a masseur and acupuncturist.  Both parents, after separating when you were about five, have re-partnered. 

46You told Mr Simmons you had a good childhood, you always got what you wanted and talked about family activities.  You also had a very close relationship to your maternal grandfather, who lived in Barmah, and who you described to
Mr Simmons, as "the adult that he loved the most."  Sadly for you, your grandfather died whilst you have been in custody.  You told Mr Simmons that growing up you were closer to your mother than your father but then, as you reached your teens, became closer to your father, who you described as having always been there for you. 

47Your counsel informed me today that your father, who attended court with his partner, has visited you constantly in gaol, has been somewhat of a rock for you, and it is your intention, when you leave gaol, to go and live with your father and continue with his assistance. 

48You had a number of schooling changes, particularly in your secondary years, but you completed Year 11 at Midlands Secondary College in Ballarat.

49When you were 17, your brother, to whom you were extremely close, died of a heroin overdose whilst sharing the same room with you.  I regard this as a significant incident in your life, explaining to some extent the fairly extensive drug and alcohol history I will shortly outline, and a matter that you have not dealt with except by way of blocking out strategies via drug use.

50You did not work until you were 21, just floated around, then worked as a chef for ten years, although this was on a sporadic basis.  You told Mr Simmons you have lost positions in the past because you have not attended, had conflict with the owner or with other chefs.  You were also an intermittent labourer when you were tired of working as a chef and that 12 months before being arrested you were working at building houses with Mr Diamantopoulos and living at his parents' home.

51You began smoking cannabis when you were 12 and had increased your daily use by the time you were about 14, it peaking at seven grams a day, which continued until you were 23.  You stopped using for about six months but then relapsed, using it again, and there was a pattern of intermittent use until you were 26. 

52You began using magic mushrooms when you were 15 and then were introduced to amphetamines and ecstasy by your brother.  You did not use those drugs frequently until your brother died and then you began using on a very frequent basis.  You were, on average, taking seven ecstasy tablets a day, feeling you wanted to die, and ecstasy helped you deal with that feeling. 

53At that stage there was limited use of amphetamines, but about ten years ago you stopped using ecstasy and turned to speed.  You were smoking it daily, about 3.5 grams a day for about 12 months.  That is a very large speed habit.  You were working, you were able to afford it, you developed a tolerance for the drug, and you were friends with the family of the person who was supplying you with the drug, but that person then developed a psychosis, which is what happens to people who use speed or amphetamines.  It interferes with the electrical impulses in the brain and mostly people who use it too much develop schizophrenia, paranoid schizophrenia.  I do not know if that is what happened to your friend, but that is usually what happens.  You were asked to cease contact with that friend and you agreed to that, stopped using amphetamines, but then turned to methamphetamines or ice.  You smoked this and you continued to smoke it until the time of your arrest.  You estimated to Mr Simmons that your use peaked at a gram a day, and that is a big habit.  In the last few years, disturbingly, in my view, you have been using the drug intravenously.  You have also intravenously used OxyContin, which is also concerning, as that is morphine-based.  It is a bit like having a heroin and ice habit at the same time. 

54You have had a couple of relationships, one of them, which was for five years, involving a great deal of mutual drug use, and you moved to live with this person in Perth at one stage.  You have also used cocaine and GHB, which you correctly told Mr Simmons was a very dangerous drug.  You have also abused Xanax, Valium and Serepax. 

55You have had a number of relationships and have a 14 year old son as a result of one of them, but you have no relationship with that child, which you very much regret.

56Whilst in gaol you, too, have ceased your drug use.  Again, you were given a number of opportunities by the courts. 

57Turning to your offending which began in 2001, you received a community corrections order for theft of motor vehicle, going equipped to steal, intentionally damage property, using cannabis and other charges.  You were breached, and that, what was then a community-based order, also included a condition that you submit for assessment and treatment for alcohol and drug addiction.

58You were breached on those offences in June 2002, receiving a suspended sentence.  In 2003 you received a suspended sentence for theft.  You were breached for a previous suspended sentence that you had received in June 2002.  You were fined in 2004 for wilfully damaging property and again breached for a community-based order that you had been placed on which contained only work hours.  In 2006 there was an undertaking to be of good behaviour for stating a false name and address.

59There was then a gap of about 6 years until you were fined for shoplifting, and then another gap of three years when, on 5 November 2015, you were placed on a 12 months' community corrections order for theft and other charges.  That community corrections order was still in force when you committed the offence that has brought you before this court and it also contained a drug and alcohol treatment condition.

60Again, the same principles that apply to Mr Diamantopoulos apply to you.  This is soft offending, an easy target.  It is extremely prevalent.  It appears to have been carried out for very superficial motives.

61It was the observation of Mr Simmons that you were extremely teary in goal, that you spoke a great deal about your brother's death, about your grandfather's death, and I have made the observation that it appears, without the cloak of drugs, you are finally moving into the sort of grieving that you should have gone through some years ago.  That was also the view of Mr Simmons, which is a more important and professional view than mine.

62It appears that you have fairly good prospects of rehabilitation.  As I have said, you can return to your father's home.  You have a good work history.  However, again, you have been given a number of opportunities by the courts which you have declined to take up.  Your offending, too, has escalated and, in my view, you, too, should be dealt with by way of a term of imprisonment to be immediately served.

63You have a, in one way, lesser prior criminal history than Mr Diamantopoulos, although in its early stages it is more serious, in my view, given it involved a number of thefts and matters of dishonesty.  A great deal of Mr Diamantopoulos' priors consist of rather worrying driving offences. 

64It is my view that whilst, as counsel for Mr Diamantopoulos urged upon me, parity is important in this case, your sentence should be a little less than that of your co-accused because of the prior history.

65Again, it appears to Mr Simmons that you are acutely aware of what damage you may have done your victim, spoke of that at length to him, and this is very much to your credit.  Again, no victim impact statement was received, but the court is certainly aware of the emotional ravages inflicted on persons, such as the gentleman attending the petrol station that night, offending such as yours has upon them. 

66It is my view that you should be subjected to the more serious requirements of parole and attend more seriously again to this drug habit, which, like
Mr Diamantopoulos, in my view, is the sole reason for the two of you offending.  However, again, the two of you have got problems underlying this offending, which is always the case, and you need to attend to it.  If you do not, the rest of your life is going to be a situation of in and out of gaol and drug use.  You are both getting too old for this.  As I have said, you have now both got a prior for armed robbery and a gaol sentence attached to it.  You need to do something about it.

67In sentencing you, like Mr Diamantopoulos, I take into account your plea of guilty, which is an early plea.  I take into account your good prospects of rehabilitation.  I do take into account your remorse, and I take into account the supports that your family has. 

68On the charge of armed robbery, I am sentencing you to a term of 26 months' imprisonment, and I order that you serve a minimum term of 14 months. 

69I declare that 192 days of this sentence have been served by way of pre-sentence detention. 

70Have a seat, sir.

71Pursuant to s.6AAA, I declare that had you, Mr Diamantopoulos, not pleaded guilty, I would have sentenced you to a term of three years and nine months' imprisonment and ordered that you serve a minimum term of two years and nine months. 

72Pursuant to s.6AAA, I declare that had you not pleaded guilty, Mr Watts, I would have sentenced you to a term of three years' imprisonment and ordered that you serve minimum term of 18 months. 

73Anything else?  We have got the orders.  Do you want to hand them up, please?

74MS HAMMILL:  Also, in relation to the sentence for Mr Diamantopoulos, I assume that the one month in relation to the commit indictable offence is concurrent.

75HER HONOUR:  Unless I say it is cumulative, it is concurrent.

76MS HAMMILL:  Yes, Your Honour.

77HER HONOUR:  All right.  Thank you.

78MS HAMMILL:  Yes, Your Honour, the orders.  There is one order missing from the orders that I am handing up, Your Honour.  It is the order in relation to the forfeiture of the bikes.  My instructor will prepare that order and email that across to Your Honour's associate.

79HER HONOUR:  The boys' toys are going, are they?

80MS HAMMILL:  Yes, Your Honour.

81MS CAMERON:  It is not opposed, Your Honour.

82HER HONOUR:  That's the other thing.  I mean it is so teenage, rocking up on a dirt bike to do an armed robbery.  That's what teenage boys do.  Anyway.  All right. 

83Now I am going to order - so I have only got a 464ZF in relation to Mr Watts.  No, I beg your - I have got it for both.

84Gentlemen, can you stand up, please?

85Application has been made for police to obtain a forensic sample, which will be a swab in your mouth.  I need to advise you that if you resist the taking of this swab, police are entitled to use reasonable force in order to obtain it, all right? 

86Have a seat, thank you.

87Here we go.  Thank you.

88I wish you both good luck, gentlemen.  You should not be here, all right, and you should not be back here again. 

89All right, thank you very much.

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