Director of Public Prosecutions v Dos Santos

[2015] VCC 384

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00053

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDRES DOS SANTOS

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2015
DATE OF SENTENCE:	13 March 2015
CASE MAY BE CITED AS:	DPP v Dos Santos
MEDIUM NEUTRAL CITATION:	[2015] VCC 384

REASONS FOR SENTENCE
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Subject: Criminal Law – Plea - Sentence
Catchwords: Armed robbery contrary to s.75A(1) of the Crimes Act 1958 – good prospects for rehabilitation – genuine remorse – Verdins enlivened
Sentence: total effective sentence of 44 days imprisonment with 44 days reckoned as time already served, two year community corrections order with conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Picone	OPP
For the Offender	Mr K. Legg	Kelvin R. Legg

HER HONOUR: 

1Andres Dos Santos, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for armed robbery is 25 years imprisonment.

2The circumstances of your offending are set out in the Agreed Statement of facts tendered at the plea hearing.  I sentence you on the basis of those agreed facts, which may be briefly summarised.

3The offending occurred on 6 October 2014 at Kilysth, at 2 pm, when you entered a milk bar, where you were a regular customer, with a brown handkerchief over your mouth.  You stood in front of the counter, held a large kitchen knife in front of the female milk bar owner and demanded that she place cash and cigarettes in your backpack.  She did so and you left the store on foot.  She recognised you as a regular customer and watched you stand near the store without your disguise.  She went to a neighbouring shop and raised the alarm.

4You were arrested on the same day after police searched your home and found items used in the armed robbery and items stolen from the milk bar.  You made admissions when interviewed that evening by police, telling them that you were coming off drugs at the time of the robbery and that you committed the robbery to repay drug debts of more than $2,500.  You expressed remorse at the time, apologising to the milk bar owner.  You said that you carried a knife for your own protection, but agreed that at some point during the armed robbery you had the knife out of your backpack and that the store owner would have seen it. 

5

You pleaded guilty at the earliest possible opportunity, that is, at the committal mention on 13 January 2015.  You have been in custody since your arrest on 6 October 2014.  You have 44 days pre-sentence detention up to

17 December 2014. On 17 December 2014, at Ringwood Magistrates' Court, you were sentenced to four months imprisonment for unrelated offending which occurred in July and September 2014. You were on bail for that offending when you committed the armed robbery. Although the presumption of cumulation in s.16(3C) of the Sentencing Act applies, counsel for the prosecution conceded that in the circumstances of this case and that in the light of Boulton's case a disposition combining a period of imprisonment with a CCO was appropriate. In the light of this concession I arranged for you to be assessed for suitability to undergo a community corrections order with conditions, including community work, drug treatment, mental health treatment and supervision. I received a report dated 10 March 2015 from Richard Temple of Corrections Victoria confirming your suitability for such an order. The prosecution also conceded that in the light of the diagnosis of depression made by the psychologist, Mr Dungey, imprisonment would be more burdensome for you than for other prisoners not suffering from a mental condition. The prosecution submitted that a further period of imprisonment followed by a community corrections order would be an appropriate disposition. I note that you have convictions for offences of recklessly cause injury in 2008 and unlawful assault in 2010, but that you received fines for these offences.

6At the plea hearing you were supported in court by a number of family members, including your mother and brother, who gave evidence.  Each of them noted that you had a troubled relationship with a young woman, but were completely devoted to her daughter Kayla, who called you Daddy.  You have her name tattooed on your neck.  Your relationship broke up and what upset you most about that was the loss of connection with Kayla, whom you had hoped to adopt.  Your family did not know until late in 2014 that Kayla had in fact died in July that year.  You were devastated by her death and greatly increased your use of drugs, including ice, and used drugs intravenously for the first time.  According to your brother, you became agitated and short-tempered and became a person he did not like. Since you have been in custody and off all drugs, you have gone back to being the brother he knew and loved.  Your mother said that you have been seeking drug rehabilitation while in custody but have been unable to get into any program until sentenced; however, you are using patches and your doctor is waiting for your release to refer you to relevant programs.  Your mother said that you have always been very kind-hearted and have always been employed and showed a great work ethic.

7

Your counsel tendered a psychological report of Mr Ken Dungey dated

15 February 2015.  I found his report to be of limited assistance.  Apart from administering an IQ test, he did not set out any other diagnostic tools to support his opinion that you "probably qualified for a diagnosis of personality disorder for most of his adult life and he certainly has been significantly depressed." However, I note the prosecution's concession, on the basis of this comment, that limb 5 of Verdins may be engaged due to your suffering depression, and I bear this in mind in sentencing you.  I accept that you have expressed your remorse to him for your offending.

8Mr Dungey's report set out your background.  You migrated to Australia at age two from Zimbabwe with your family and lived in Kilsyth, where you completed Year 10 at high school.  You were an average student who preferred outdoor activities.  Your father was a fitter and your mother was a manager. After leaving school you completed a landscaping course and worked as a landscape gardener.  You lost your driver's licence and then worked for a time as a baker and then in construction, laying cable. You had a difficult relationship with Kayla's mother.  You lived with them in Western Australia and Melbourne before your relationship ended.  You had, however, become very close to Kayla and, as I said, were deeply distressed at her death at age eight from a stroke. You used marijuana regularly as a teenager and moved to hard drugs at age 24.  Your life spiralled downwards as a result of heavy drug use, which followed the break-up of your relationship, your loss of contact with Kayla and your grief over her death.  You reported your depressive symptoms to the prison nurse, who diagnosed situational depression, but you have not continued seeing her, as you are afraid of attracting adverse comment in prison. You have the support of your family and can live with them when released.  Mr Dungey felt that your future rehabilitation depends on your remaining drug-free and that you are well-motivated in that respect.

9

I was taken by your counsel to the case of Maccaginini [2014] VCC 1819. That case concerned a 25 year old offender who committed an attempted armed robbery while on bail for burglary, theft and obtaining property by deception. The offending lasted only seconds before the alarm was raised. The offending took place in the context of serious drug use. The offender

co-operated with police, made full admissions and showed genuine remorse.  He had good prospects for rehabilitation.  He had no impairment which would reduce his moral culpability.  He had no prior convictions.  He was sentenced to a community corrections order for two years with treatment conditions and 500 hours of unpaid community work.

10Your counsel relied on the recent decision of the Court of Appeal in Boulton's case for the proposition that a community corrections order can serve the sentencing considerations of general and specific deterrence and can be a suitable disposition for serious offences such as the one you have committed. Your counsel submitted that in the light of your particular circumstances only a short further period of custody followed by a community corrections order would be an appropriate disposition.

11In sentencing you, I take into account that you are a relatively young man, that this kind of offending is out of character for you and is related to your heavy drug use at the time and that you have a solid employment history.  I also accept that your heavy drug use followed unresolved grief at the failure of your relationship, your loss of contact with Kayla and her tragic death at the age of eight. You made admissions when arrested and pleaded guilty at the earliest opportunity, thus saving the victim the time and trauma of giving evidence at committal and trial and saving the community the time and expense of contested proceedings.  This entitles you to a significant discount in the sentence you would otherwise receive. I also accept that you are genuinely remorseful for what you have done and have shown appropriate insight into your offending.  I also take into account the report of Mr Dungey, to the effect that you are suffering from depression, and that this will make imprisonment more burdensome for you.

12You were 26 at the time of offending and are now 27 years old.  Although general and specific deterrence loom large as sentencing considerations in the offence of armed robbery, particularly when conducted against soft targets such as milk bars, the circumstances of your offending are somewhat unusual in that it occurred against a background of a solid family history, solid education and employment history and limited earlier offending.  In particular, your current offending occurred in the context of unresolved grief that I have already described. On the other hand, it is significant that you committed this offence while on bail in relation to other offences.  However, you have shown a strong commitment to your family to undertake drug rehabilitation and return to the workforce.  Given that you are a relatively young man, I am obliged to consider a disposition that will maximise your prospects of rehabilitation, which I regard as good, provided you remain drug-free.

13I am satisfied in the light of Boulton's case that in your case the sentencing considerations of just punishment, general and specific deterrence, as well as rehabilitation, can be met by the imposition of a community corrections order.  I do not consider that the protection of the public is a dominant consideration in the light of the specific circumstances of your offending.  It is clear that your own interests and that of the community lie in you immediately engaging in ongoing drug rehabilitation and psychological or psychiatric treatment for your mental health issues, as well as to build up your resilience and coping mechanisms for adverse events in your life.

14Would you please stand. 

15On the charge of armed robbery, you are convicted and sentenced to 44 days' imprisonment, 44 days of which are to be reckoned as pre-sentence detention, and an order to that effect is to be entered into the court's record.  In addition, I sentence you to a two year community corrections order with conditions that you perform 150 hours of unpaid community work, undergo assessment and treatment, including drug testing, supervision, mental health assessment and treatment.

16In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all community corrections orders.  These are:  That you must not commit any other offences during the period of the order being in force - that is, two years from today - any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment.  You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Ringwood within two clear working days, presumably of you being released, which will be two working days of 19 March.  Is that right?

17MR LEGG:  Yes, ma'am.

18HER HONOUR:  Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring.  Finally, you must obey all lawful instructions from, and directions of, Community Corrections officers.

19Do you understand the conditions I have imposed and the general terms that apply?

20OFFENDER:  Yes, Your Honour.

21HER HONOUR:  Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the community corrections order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment.  Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and resentenced for the original offences.  Do you consent in those circumstances to the imposition of such an order?

22OFFENDER:  Yes, Your Honour.

23HER HONOUR: Finally, I indicate that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to a term of imprisonment of 12 months. 

24Are there any matters that I need to correct in framing the appropriate orders?

25MS PICONE:  No matters to correct, Your Honour. 

26HER HONOUR:  All right.

27

MS PICONE:  Just as long as it's understood that the report day is after

19 March, which I believe Your Honour said.

28HER HONOUR:  All right.

29MS PICONE:  And there's the ancillary orders.

30HER HONOUR:  Now those ancillary orders are - do we have them?

31MS PICONE:  I believe they were handed up on the previous occasion.  If there's any difficulty, I could email those to Your Honour's associate.

32HER HONOUR:  No, no, no difficulty at all.  I'm sorry, it is just that I have not referred to them.  Are they consented to?

33MR LEGG:  They are, ma'am, yes.

34HER HONOUR:  The disposal order and the restitution order?

35The Crown has sought disposal orders in relation to items of clothing used in the armed robbery and a restitution order in the sum of $220 and restoration of cigarettes and other items that were taken at the time of the armed robbery.  I will make the orders sought and record that those orders have been made.

36Because Mr Dos Santos is still in custody, you don't need copies of the orders right this minute, do you?  Or do you?

37MS PICONE:  No, Your Honour.

38HER HONOUR:  In that case I will give you copies of the disposal and restitution orders, but the others we will finalise in chambers.  Are there any other matters I need to address?

39MS PICONE:  No, Your Honour.

40MR LEGG:  Nothing further, Your Honour.

41HER HONOUR:  All right, thank you.

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