Director of Public Prosecutions v Dove
[2016] VCC 148
•19 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01764
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE ALLAN DOVE |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 January 2016 and 12 February 2016 | |
DATE OF SENTENCE: | 19 February 2016 | |
CASE MAY BE CITED AS: | DPP v Dove | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 148 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of theft, two charges of armed robbery, one charge of negligently dealing with proceeds of crime; driving a motor vehicle without a driver licence; and committing an indictable offence whilst on bail
Legislation Cited: Crimes Act 1958, s74; s75A; and s194(4); Road Safety Act 1986, s18(1)(a); Bail Act 1977, s30B; Sentencing Act 1991
Cases Cited:
Sentence: Total effective sentence of 4 years imprisonment with a non-parole period of 2 years 6 months; 6AAA declaration: 6 years imprisonment with a non-parole period of 4 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G Overend | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Langton | Legal Aid Dandenong |
HIS HONOUR:
1 Dale Allan Dove, you have pleaded guilty to the following offences:
Charge 1 – That you at Endeavour Hills in Victoria on 18 April 2015 did steal a motor vehicle belonging to Bruce Hearn.
The crime of theft is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – That you at Mulgrave in Victoria on 18 April 2015 did rob Barbara Busek and Le Giang of certain money and one Apple iPhone and at the time had with you an offensive weapon, namely a kitchen knife.
The crime of armed robbery is contrary to s.75A of the Crimes Act and carries a maximum penalty of 25 years’ imprisonment.
Charge 3 – That you at Dandenong North in Victoria on 18 April 2015 did rob Hui Ma of certain money and cigarettes and at the time had with you an offensive weapon, namely a kitchen knife.
The crime of armed robbery is contrary to s.75A of the Crimes Act and carries a maximum penalty of 25 years’ imprisonment.
Charge 4 – That you at Dandenong North in Victoria on 15 May 2015 negligently dealt with the proceeds of crime, namely one New Balance backpack, one Android Google mobile phone, four watches and items of jewellery.
The crime of negligently dealing with the proceeds of crime is contrary to s.194(4) of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
2 At the plea hearing of this matter on 29 January 2015, you consented, pursuant to s.145 of the Criminal Procedure Act 2009, that the following summary offences be transferred from the Magistrates’ Court to the County Court. Accordingly, you also pleaded guilty to the following summary offences:
Charge 9 – That you on 18 April 2015 did drive a motor vehicle on a highway, namely Police Road, without being the holder of a driver licence or permit authorising you to drive such motor vehicle and without being exempt from holding such licence or permit under the regulations.
Such offence is contrary to s.18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 25 penalty units or three months’ imprisonment.
Charge 14 – That you at Mulgrave on 18 April 2015 did commit an indictable offence, namely armed robbery, whilst on bail.
Such offence is contrary to s.30B of the Bail Act 1977 and carries a maximum penalty of 30 penalty units or three months’ imprisonment.
The circumstances of the offending
3 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit “2”) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You were born on 11 October 1980 and at the time of the subject offending were 35 years old.
(b)On 18 April 2015 at approximately 9.50am, Le Giang, who is a pharmacist, was working at the National Pharmacies, Mulgrave, with pharmacy assistants, Susanna Rance and Karin Beveridge. Furthermore, Barbara Busek, an off-duty staff manager, was also present at the pharmacy, as were a number of customers.
(c)At about 9.55 am, Ms Busek saw you walk past the door of the pharmacy and look inside. At that time, you were wearing a dark hoodie over your head with the cords tied so only your eyes could be seen.
(d)Moments later, you walked into the pharmacy through the front door and walked straight up to the pharmacy counter, during which time you pulled out a knife from your pocket and held it in your right hand. You were holding an open plastic bag in both hands.
(e)You went around the pharmacy counter and looked at what was on display behind the counter. You then approached Ms Busek, stating “You need to put money in the bag”. After again asking for money, one of the employees said “We don’t have any cash”, after which you stated “Give me anything, give me anything”.
(f)You took approximately $30 that was on the bench, together with the Apple iPhone 4 belonging to Ms Giang. Ms Busek put her handbag on the counter and tipped it upside down, causing a few coins to come out which she gave to you. At that time, you said “Sorry”. You then walked quickly from the store and entered a white Holden Commodore (registration number RET-955) and drove away. At that time, you were not licensed to drive and were driving a stolen vehicle (Charges 1 and 2), together with the uplifted Charge 9.
(g)On the same day at approximately 10.05am, you attended the IGA Friendly Grocer, Dandenong North, where Ms Hui Ma was working by herself filling a fridge. There were no customers in the shop.
(h)Whilst Ms Ma was filling the fridge you entered the shop, holding the same knife and plastic bag that you had used in the earlier armed robbery. You placed the knife in your pocket and started filling up the bag with packets of cigarettes from the cabinet located behind the console area.
(i)Ms Ma left the fridge area and approached you, and you stepped towards her so that you were in close proximity to her. You pointed the knife at her and said “Open the till.” Ms Ma swapped positions with you so that she could access the register and open the till. Ms Ma opened the till, and you told her to put all the money into the bag, which she did, asking you “Do you want the coins?”, to which you replied “Good, good.”
(j)You then walked quickly out of the store, after which Ms Ma pushed the alarm button. She observed you get into the stolen white Holden Commodore and drive away (Charge 3).
(k)On 15 May 2015 at approximately 9.20 am police attended Room 1 of 89 Cleeland Street, Dandenong, and arrested you. At that time, a male, who resided at this address, handed police a black ‘New Balance’ back pack which he believed belonged to you. The bag contained an Android Google mobile phone, four watches and an assortment of jewellery (Charge 4).
(l)You were taken to the Dandenong Police Station where you participated in a record of interview with police. During such record of interview you denied any offending, and stated:
· "I’d remember doing them, if I did them, and I don’t remember doing them. I was pretty messy for a little while ... coming off methadone ... I’d still remember doing it.
· I’d been at Odyssey House for about two months [to help with heroin] ... They asked me to leave, then come back, but I never went back.
· I went to a motel in Dandenong and then stayed at friends’ places.
· I stopped taking methadone and started taking heroin again".
(m)The interview was suspended in order for you to view CCTV footage of each of the armed robberies. After viewing the footage you continued to deny being involved in the armed robberies, and also stated:
· "I think I stayed at Tony’s place a couple of times [Room 1 of 89 Cleeland Street, Dandenong].
· I left a bag there ... I was given it the other day by someone who owed me money ... I have a pretty good idea of what was in it".
(n)This matter proceeded to a committal on 13 October 2015, and two witnesses were cross-examined. At the conclusion of the committal you pleaded guilty.
4 Counsel for the prosecution showed CCTV footage of each of the armed robberies, and such footage was tendered (see Exhibit 5).
Victim impact statements
5 Counsel for the prosecution tendered two victim impact statements (Exhibit “3”):
(a)One declared by Ms Barbara Busek on 25 January 2016. Ms Busek was the off-duty staff member at the National Pharmacies in Mulgrave. She requested that that statement be read aloud in court, which was undertaken;
(b)One completed by Le Giang, declared on 27 January 2016. Ms Giang did not want her statement read aloud in court. I have perused such statement.
6 In her statement, Ms Busek describes how she would never forget the day that you committed the armed robbery at the pharmacy. In particular, she describes how she is “haunted” in relation to that moment when she did not know whether you would use your knife on her or her colleagues. She describes ongoing “guilt” by not handing over her phone when you demanded the phone, and continues to feel that she put her workmates at risk as a result of such decision. She also fears that there will be a repeat of such an incident and has feelings of severe panic and anxiety when someone walks into the pharmacy who is wearing a dark covered hoodie.
7 She does not now like to work nights at the pharmacy, as there are fewer staff with a greater risk of armed robberies. She describes that because she is a university student, she predominantly works on weekends and night work and this has impacted on her earnings potential, as she has turned down a permanent position working weeknights but has chosen a casual position that only requires the odd night at work.
8 Even at home she sleeps poorly and has not been able to function properly at work, and has to leave early on occasion. She describes having taken out a gym membership to save her from walking or running through parks. Her lack of sleep because of her ongoing fear and anxiety has resulted in her having difficulties when required to do ward duty as part of her nursing duties.
9 In her statement, Ms Le Giang describes being an “emotional wreck” as a result of the incident and continues to recall you with a knife demanding money in circumstances where there was no cash to give. In particular, she describes how a million things crossed her mind during that incident, including her potential loss of life. Initially she suffered sleepless nights, flashbacks, anxiety and, as she describes, living on edge – more so because you stole personal documents from her.
10 She continues to suffer emotionally, and each day at work when the front door of the pharmacy opens she is uneasy as to who will walk through the front door. In particular, unfamiliar faces, male, sunglasses on, hoodies on, all trigger anxiety for her and she is very anxious generally around people wearing hoodies. Although she has improved to some extent over time, she ultimately states “five minutes of armed robbery – a lifetime of fear,” and that your life is “never the same again”.
11 Although she is offered extra hours at the pharmacy, she only works part-time hours now because of her fear of another similar incident. In this sense, her financial position has been substantially affected. She notes that pharmacy has been her only profession, although changing careers may be better for her mentally.
Your Victoria Police criminal history report
12 Your Victoria Police criminal history report was tendered (Exhibit 1). It covers some 34 pages, with your first court attendance being on 18 December 1997, when you were 17, at which time you were found guilty of theft and going equipped to steal and cheat, with both charges being adjourned on a bond for 12 months without conviction. Over the years, as such record demonstrates, your offending has largely involved various thefts, particularly of motorcars, burglaries, and a significant number of driving offences – for example, seemingly approximately 17 prior convictions for driving whilst disqualified or unlicensed. Furthermore, over the years you have been found guilty of breaching adjourned good-behaviour bonds, community correction orders, and suspended sentences.
13 Prior to the subject offending, there have only been a few instances of violence – on 10 January 2008 you were convicted of two counts of intentionally causing injury, and on 11 September 1998, you were convicted of going equipped to steal/cheat in possession of a regulated weapon.
14 I was informed by your counsel that many of these offences were drug-related, and indeed I note on 13 February 2001 you were convicted at the Frankston Magistrates’ Court of possessing heroin, using heroin, resisting police, escape from prison/police jail, attempt to commit an indictable offence, various counts of theft (some of which involved the theft of a motor vehicle). You were sentenced to an aggregate period of imprisonment of 18 months.
15 On appeal, on 2 March 2001, such appeal was allowed, the magistrate’s order set aside and you were sentenced to an aggregate period of 12 months’ imprisonment, six of which were suspended for two years. Your licence was then cancelled and you were disqualified from obtaining a licence for a period of three years effective from 13 February 2001.
16 Subsequent to that date, your criminal history reveals:
(a)On 26 April 2001 you were convicted of two counts of theft of a motor vehicle, driving whilst disqualified, and going equipped to steal/cheat. You were sentenced to an aggregate period of 12 months’ imprisonment wholly suspended for a period of 18 months, together with your licence being cancelled for a period of 15 months (effective from 26 April 2001).
(b)On 17 December 2001 it was proven that you had breached the suspended sentence order made on 26 April 2001. Your sentence was wholly restored.
Furthermore, on that day you were again convicted of three thefts of a motor vehicle, together with driving whilst disqualified and going equipped to steal and cheat. You were sentenced to an aggregate period of 12 months’ imprisonment.
(c)On 28 February 2002 you were found guilty of breaching the suspended sentence made on 2 March 2001 and the original sentence of six months was restored, with three months of such sentence to be concurrent with other sentences.
(d)On 5 June 2003 you were again convicted of the theft of a motor vehicle, holding or receiving or disposing of stolen goods, and a fraud offence involving unlicensed driving. You were sentenced to an aggregate period of two months’ imprisonment and were disqualified from driving for a period of 12 months effective from 5 June 2003.
(e)On 15 August 2003 you were convicted of the attempted theft of a motor vehicle, going equipped to steal and cheat, and the theft of a motor vehicle. You were sentenced to four months’ imprisonment to be served by way of an intensive correction order with various conditions.
(f)On 12 May 2004 you were convicted of two counts of burglary, theft, handling and disposing of stolen goods, and theft from a shop. You were sentenced to 2 months 14 days’ imprisonment, cumulative upon any other sentence.
Also on 12 May 2004 you were convicted of breaching the intensive correction order made on 15 August 2003 and ordered to serve the unexpired portion of 238 days.
(g)On 27 April 2005 at Frankston Magistrates’ Court you were convicted of burglary, theft and attempted burglary, and sentenced to an aggregate period of one month’s imprisonment period, wholly suspended.
(h)On 19 September 2005 at Frankston Magistrates’ Court it was found proven that you breached the suspended sentence order made on 27 April 2005, and the suspended sentence was wholly restored and you were ordered to serve one month’s imprisonment.
On that day you were also convicted of theft of a motor vehicle, failing to have a qualified driver when a learner, going equipped to steal and cheat and failing to answer bail. You were sentenced to 20 months’ imprisonment with a non-parole period fixed at 12 months and your licence was cancelled and you were disqualified from holding a licence for two years effective from 19 September 2005.
(i)On 10 January 2008 at Melbourne Magistrates’ Court you were found guilty of theft of a motor vehicle, failing to answer bail, intentionally causing injury, driving whilst disqualified, a further theft of a motor vehicle and unlicensed driving. You were sentenced to one year and one month’s imprisonment.
(j)On 18 February 2009 you were again convicted of theft of a motor vehicle and sentenced to three months’ imprisonment.
(k)On 16 November 2010 you were convicted of various offences involving burglary, theft, several counts of theft of a motor vehicle, unlicensed driving and dealing with property suspected to be the proceeds of crime. At that time you were sentenced to an aggregate of 14 days to be served by way of a drug treatment order, subject to various conditions.
(l)On 13 December 2010 at Dandenong Magistrates’ Court you were convicted of theft of a motor vehicle and driving whilst disqualified, together with the use of heroin. You were sentenced to two months’ imprisonment, wholly suspended for a period of nine months, together with cancellation of your licence for a period of six months.
(m)On 1 February 2011 at the Dandenong Magistrates’ Court you were convicted of the attempted theft of a motor vehicle and sentenced to two months’ imprisonment.
(n)On 2 August 2011 at Dandenong Magistrates’ Court you were found to behave breached the drug treatment order made on 16 November 2010 and ordered to serve the unexpired portion of 12 months.
(o)On 2 August 2011 at Dandenong Magistrates’ Court you were convicted of theft, burglary, going equipped to steal and cheat, theft of motor vehicle, and driving whilst disqualified. You were sentenced to an aggregate period of 20 months’ imprisonment, part of which was to be served concurrently with other sentences.
17 Both counsel referred me particularly to the last couple of years of your offending. In this respect it is noted that on 8 May 2014 you were convicted of burglary, theft, handling and receiving stolen goods, obtaining property by deception, dishonestly assisting in disposal of stolen goods and committing an indictable offence whilst on bail.
18 You were sentenced to 18 months’ imprisonment, with it being noted that you had been in custody for 129 days at that time. The learned magistrate ordered that the sentence of imprisonment be served by way of a drug and treatment order made under the Sentencing Act 1991, together with various conditions attached to such order. Both counsel submitted that it would appear that when the learned magistrate made the drug and treatment order he did not allow for the 129 days pre-sentence detention.
19 Thereafter, the following events have occurred:
(a)On 15 July 2014 you were arrested on unrelated matters and remanded in custody for a period of 31 days until being granted bail on those matters on 14 August 2014.
(b)You were then arrested on further unrelated matters on 12 September 2014 and remanded in custody for a period of 162 days until granted bail on 20 February 2015.
(c)The subject armed robberies occurred on 18 April 2015, and accordingly you were on bail at that time as from 20 February 2015 (basis of the uplifted Charge 14).
(d)On 22 April 2015 you failed to appear in relation to the other unrelated matters and a warrant was issued.
(e)On 15 May 2015 you were arrested on the armed robberies and the warrant. You have been in prison since that date.
(f)
On 21 May 2015 you were convicted of the other unrelated matters and sentenced to an aggregate of 193 days’ imprisonment concurrent with any other sentence, with the pre-sentence detention being the 193 days declared (that is, the period from 15 July 2014 to 14 August 2014
(31 days) and from 12 September 2014 to 20 February 2015 (162 days)). The drug treatment order made on 8 May 2014 was cancelled and you were ordered to serve eight months’ imprisonment.
(g)On 13 October 2015 the committal occurred in this matter, and the matter resolved shortly thereafter by you pleading guilty to those offences.
(h)On 20 January 2016 your sentence in relation to the breach of the drug order lapsed, and you have been in prison since on bail in relation to the subject offences. Accordingly, your pre-sentence detention in relation to the subject offences amounts to 37 days, being from 15 May to 20 May 2015 and from 21 January 2016 to yesterday.
Your personal circumstances, educational and vocational background
20
Your counsel tendered his outline of plea submissions (Exhibit “A”) and also drug court assessments dated 30 April 2014 and 2 May 2014 (Exhibit “B”). The drug court assessment dated 2 May 2014 makes reference to an interview with you on
1 May 2014 and also refers to a previous report by the Officer in Charge from Community Corrections, Ms Julie Kowalski, dated 8 November 2010 (“the Kowalski report”).
21 On the basis of those documents and various other information put to the court during the plea, I note the following:
(a)You were raised in the Cranbourne area and attended the Langwarrin Secondary College where you remained until sometime during Year 8, when you were expelled for getting into trouble and fighting with both teachers and other students. You were then 15.
(b)Prior to leaving school, you had been working as a truck jockey and continued this for about 12 months, after which you secured a job with a friend’s father in his nursery business where you remained for about two years. At the age of 18, you were promoted to foreman and in charge of two staff, but ultimately left this job as you considered the pay was poor. You then commenced work as a floor and wall tiler, attending trade school for about 12 months before commencing your drug use and offending.
(c)That you had had various periods of imprisonment which interrupted your studies. Your work has consisted mainly of tiling and, although not qualified, you worked casually for a variety of private contractors. As best you can say, that work was on and off until about 2008 and thereafter you performed some work in an abattoir for about eight or nine months.
(d)Your parents separated when you were a baby and you maintained only irregular contact with your father over the years as your father had moved to Ballarat and remarried. Your father committed suicide in 2004 and, according to Ms Kowalski, this appeared to have an obvious impact on you as you blamed yourself for quite some time, thinking that your lifestyle regarding drug use and crime may have caused your father distress. However, you did report further that, after grief counselling, you have come to terms with the death of your father.
(e)When about seven years old, your mother formed another relationship with a man, whom you described as a “violent alcoholic”, and over the next seven years, during which time your mother was in such relationship, you claimed that you were the victim of physical abuse at the hands of your mother’s partner. You observed your mother and sister, Debbie, being verbally abused and, on occasions, your mother physically abused. At the age of 14, you began to stick up for yourself and it was at this stage that your mother separated from this partner.
(f)In or about 2000, your mother formed a further relationship and that relationship resulted in marriage in 2009. You claim that you get along well with your mother’s new partner. You claim to have a strong relationship with your mother and sister and consider them supportive, save for when you relapse into drug use and none of the family can accept or cope easily with your behaviour.
(g)In or about 2010, you separated after a nine-month relationship from or with Narelle. She was also a drug user and you realised that in order to overcome any drug use your relationship had to end.
(h)Various materials suggested that you have had a long history of drug use associated with your criminal activities and such drug use has involved extensive use of cannabis and also heroin.
Circumstances of your offending
22 I am informed by your counsel that on 20 February 2015 you were bailed to the SEADS detoxification service in Dandenong, after which you were moved to Odyssey House once a bed became available. You remained at Odyssey House until April 2015, when you were asked to move out because of misuse of prescribed medication. Leading up to your stay in Odyssey House, you had been using heroin and when in Odyssey House, you had been prescribed methadone.
23 In April 2015 – about one week prior to the offences – you left Odyssey House but were given the option of applying for readmission after about a week. You have instructed your counsel that you intended to “lay low” for a week and then reapply.
24 Unfortunately, you commenced using heroin again. You only have a hazy recollection of the offending and have essentially reconstructed the actual events in your mind.
25 Your counsel noted, because of the vagueness of your memory relating to the alleged offending and bearing in mind identification evidence was not particularly strong, the committal hearing involved the examination of two witnesses relative to the DNA evidence found on a cigarette pack, which was said to link you to the offending. After such evidence, you accepted the accounts given by eye witnesses at a “very early stage”.
26 Your counsel informed me that you presently hold the status of a “protected prisoner” because you elected to give evidence about observing an incident when a prisoner stabbed and slashed another prisoner. As a result of giving such evidence, your jaw was broken causing you to be in protective custody since then. You were transferred to Ararat Prison for some time but now have been in the protective wing of Port Phillip Prison for about three months. You do have regular phone contact with your mother and sister.
Submissions made by your counsel in support of your plea in mitigation
27 Although your counsel submitted, appropriately in my view, that the only appropriate sentence for the subject offending is a period of immediate imprisonment, he highlighted the following matters in mitigation of sentence:
(a)That essentially your plea of guilty was at the earliest opportunity. As already noted, the committal hearing proceeded only to test the integrity of the DNA evidence and no leave was sought to cross-examine any of the victims or other eyewitnesses of the crimes. Such plea of guilty, so it was submitted, had the utilitarian benefit of avoiding the cost and time involved in conducting a trial but also shows some evidence of “remorse”.
(b)That you have maintained a good relationship with your sister and can draw upon family support outside prison. Furthermore, your counsel noted that when not subsumed by drugs you are capable of performing work as a tiler.
(c)According to your counsel, you have expressed a desire to overcome your drug problems and seek rehabilitation with a desire to re-explore residential rehabilitation such as Odyssey House. Although conceding that you have a very poor criminal history, most of the offences are related to driving and property related matters, many of which are linked to drug use. Although accepting that specific and general deterrence are critical sentencing factors, as well as community protection, rehabilitation is still a factor given your desire to overcome your drug problem.
(d)Your counsel submitted that your prospects for rehabilitation are “guarded” but not non-existent. In this respect, he did refer to your convictions at the Frankston Magistrates’ Court on 19 September 2005 when you were imprisoned for a period of 20 months with a non-parole period of 12 months. Your counsel highlighted that such sentence was served and you were paroled for a period of time and there would appear to have been no further offending until 2008.
In such circumstances, your counsel submitted that although there should be an immediate period of imprisonment, it should be accompanied by a significant parole period to allow supervision of your activities during the transition from imprisonment to law-abiding member of the community.
(e)Your counsel also highlighted that prior to this offending, you have only had one prior conviction on 11 September 1998 for possessing a regulated weapon and two prior convictions on 10 January 2008 involving two charges of intentionally causing injury.
(f)Your counsel also submitted that the principle of totality should be considered, taking into account that when sentenced on 21 May 2015, there did not appear to be any concurrency in relation to the sentence of imprisonment imposed of 193 days (which represented pre-sentence detention) for the “unrelated matters” and the sentence of imprisonment of eight months in breach of the drug treatment order. Your counsel submitted that if all matters had been heard on 21 May 2015 – that is to say, including the subject offences – you would have expected some of the sentences to be served concurrently.
Your counsel did also note that the subject offending occurred while you were on bail and prima facie, s.16(3C) of the Sentencing Act 1991 applied. Such sub-section states:
“Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences imposed on that offender, whether before or at the same time as that term.”
Your counsel submitted that that sub-section must “yield” to overarching principles of totality.
28 In response, counsel for the prosecution, although accepting there was no detailed planning in relation to the armed robberies, did submit the circumstances of the robberies would suggest some forethought given that you had a knife and bag with you to collect monies. Furthermore, she noted that the hood of your jacket was positioned in such a way to hide most of your face.
29 Counsel for the prosecution also highlighted the victim impact statements which clearly demonstrate the long-term consequences of some of those who were the victims of the pharmacy robbery.
30 Counsel for the prosecution also highlighted that you have a significant and relevant criminal history and that, according to her, you have breached every order made by a court, including the Drug Treatment Order made on 8 May 2014. Furthermore, according to her reckoning, you have been convicted 17 times for driving whilst disqualified or unlicensed. In particular, counsel for the prosecution submitted:
(a)In relation to the offence of theft of a motor vehicle, s.89(1) of the Sentencing Act requires that I must disqualify you from obtaining a licence for a specified period of time.
(b)The armed robberies can be characterised as an escalation of offending, which now includes weapons.
(c)Although the plea of guilty was “reasonably early”, there is little evidence in terms of remorse.
(d)General deterrence and specific deterrence are important sentencing factors – particularly, specific deterrence given your criminal record.
(e)Your prospects of rehabilitation were described as “very guarded” given your record of not complying with earlier court orders, although it was noted, consistent with your counsel, that you have only ever been given one chance of residential rehabilitation.
31 Ultimately, counsel for the prosecution submitted that an immediate term of imprisonment was the only reasonable sentencing option, although in so determining an appropriate sentence, the issue of totality was an important consideration given the events referred to by your counsel.
Conclusion
32 The offence of armed robbery is a serious offence, as is made clear by the maximum penalty of 25 years’ imprisonment. Although I accept that both armed robberies committed by you may not have involved sophisticated planning, it is plain enough that you had the wherewithal in both robberies to carry a knife and a bag to collect monies and hide as much of your face as possible by using the hood of a garment that you were wearing to cover most of your face.
33 Furthermore, a pharmacy and an IGA grocery can only be described as “soft targets”. The effect on some of the victims of the robbery at the pharmacy has been dramatic, as evidenced by the two victim impact statements. Such statements highlight the immediate fear that people experience when confronted with someone brandishing a knife and, indeed, the ongoing difficulties experienced by victims of an armed robbery. Such consequences, as demonstrated by the victim impact statements of Ms Busek and Ms Giang, impact on the employment and recreational activities of each of the victims, together with a loss of peace of mind. In this respect, I again refer to the victim impact statement of Ms Giang when she states, amongst other things, that “five minutes of armed robbery – a lifetime of fear”.
34 Consistent with the submissions of your counsel, I do accept that your criminal history, although demonstrating many convictions for thefts and burglaries, reveals seemingly no history of the more serious offence of armed robbery. Whereas your counsel submitted to me that this should be taken into account as a mitigatory factor, counsel for the prosecution submits that the offences of armed robbery must be viewed as an escalation of your offending, given that you have taken to being armed when such offences occur.
35 Given that the armed robberies occurred only a short while after you were required to leave Odyssey House and during a period which you had returned to using heroin, I consider that your motive for such offending was to obtain monies to purchase heroin.
36 In relation to the offence of stealing a motor vehicle, such crime must be seen in the context of you having many prior convictions for the same offence. Your prior convictions have resulted in a variety of sentencing options involving suspended sentences, Community Correction Orders and periods of imprisonment. Ultimately, it would appear that none of these sentences has deterred you from committing such an offence.
37 I note that you also have prior convictions for driving a motor vehicle without being the holder of a licence or permit, and again previous sentences seemingly have had little impact on you continuing to commit such an offence. Again, I note that you have prior convictions for dealing with the proceeds of crime or similar offences extending over many years.
38 I do accept that the following matters should be taken into account in mitigation of any sentence:
(a)Your plea of guilty, although not given at the earliest opportunity, was relatively early immediately following the committal hearing, which proceeded to test the integrity of the DNA evidence. In these circumstances, a plea of guilty has, at the very least, utilitarian value in saving the time and cost of a trial (see Phillips v R [2012] VSCA 140 at paragraph 36).
(b)It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (again, see Phillips v R at paragraph 96). In the circumstances of this matter, I accept there may be some “remorse” on your part, bearing in mind your instructions to your counsel that you have a desire to overcome your drug problems and seek rehabilitation with a desire to re-explore residential rehabilitation such as Odyssey House.
(c)I accept that many of your past offences, and, indeed, the subject offences, are related one way or another to drug use, and although denunciation, general deterrence, specific deterrence and community protection are all relevant sentencing considerations, there is some hope for rehabilitation, given your desire to overcome your drug problem. In this regard, I would consider that your prospects of rehabilitation, given your many years of repeated offending, your frequent breaches of bonds, Community Correction Orders and suspended sentences, and various breaches of bail, can only be described, in my view, as “very guarded”.
39 I have come to the view that, given the nature of your offending, particularly the armed robberies, in the context of what can only be described as a frightful record, immediate incarceration is the only sentencing option.
40 In formulating an appropriate sentence, I also consider that the following matters should be borne in mind:
(a)given the nature of your offending, particularly the armed robberies, the sentence must reflect denunciation of such crimes, general and specific deterrence – specific deterrence is an important matter in the sentence, given your criminal record;
(b)that to promote any chance of rehabilitation, there should be a lengthy period of parole during which you would be supervised by the Parole Board in the event that you are granted parole at the earliest opportunity during your sentence;
(c)that, as both counsel submitted, the principle of totality be applied in your circumstances in relation to the current sentence, given the prior matters to which I have referred.
41 Although s.16(3C) of the Sentencing Act 1991 provides that any term of imprisonment in relation to offences committed when released on bail are to be served cumulatively on “any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term”.
42 However, the sub-section also has the words “unless otherwise directed by the court”. These words should be compared to s.16(3B) of the Sentencing Act 1991 which provides that every term of imprisonment imposed on a person for an offence committed while released under a Parole Order may, in respect of another sentence of imprisonment, be served “cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the Parole Order”. Sub-section (3B) contains these words:
“Unless otherwise directed by the court because of the existence of exceptional circumstances.”
43 I refer to R v Mantini [1998] 3 VR 340 at p.348 wherein Callaway JA stated:
“Sometimes the decision to displace a prima facie rule about concurrency or cumulation is readily made. It may be self-evident, for example, that the principle of totality with a need to avoid a crushing sentence requires a measure of concurrency or, as in R v O’Rourke, that justice requires a measure of cumulation. On other occasions the decision is more difficult. The prima facie rules leave the sentencing judge at large, except where the legislature has used the formula ‘unless otherwise directed by the court’ because of the existence of exceptional circumstances.”
44 Furthermore, I refer to R v Sebborn [2008] VSCA 200 wherein the court (Vincent and Weinberg JJA and Robson AJA), at paragraphs 25-26, stated:
“The sentencing judge referred to s.16(3C) of the Sentencing Act 1991, which provided that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term. His Honour gave no reasons for not ‘directing otherwise’ apart from saying that he could see no reason not to impose cumulative sentences.
The reason why wholly cumulative sentences ought not to have been imposed in this case lies in the principle of totality.”
45 The principle of totality requires that where you are being sentenced to multiple terms, or otherwise to serve multiple sentences, the court should ensure that the total sentence remains “just and appropriate” for the whole of the offending. Such principle applies not only to sentences imposed at the same time, but also to sentences imposed on different occasions: see generally Scott v The Queen [2010] VSCA 320 at [13] per Bongiorno JA – with whom Nettle JA agreeing and R v Mangelen (2009) 23 VR 692.
46 After taking all of these matters into account, I propose to sentence you as follows. Please be upstanding.
(a)In relation to Charge 1 involving the theft of a motor vehicle, you are convicted and sentenced to a period of imprisonment of 15 months. Furthermore, pursuant to s.89(4) of the Sentencing Act 1991, any licence or permit that you may have to drive a motor vehicle is cancelled and you are disqualified from obtaining a further one for a period of four years effective from this date;
(b)In relation to Charge 2 involving the armed robbery at the pharmacy, you are convicted and sentenced to 24 months’ imprisonment. This sentence is to be the base sentence;
(c)In relation to Charge 3 involving the armed robbery at the IGA grocer, you are convicted and sentenced to 24 months’ imprisonment;
(d)In relation to Charge 4 involving dealing with the proceeds of crime, you are convicted and sentenced to six months’ imprisonment;
(e)In relation to Charge 9 uplifted from the Magistrates’ Court involving driving without a licence or permit, you are convicted and sentenced to two months’ imprisonment;
(f)In relation to Charge 14, the uplifted charge from the Magistrates’ Court involving committing an indictable offence whilst on bail, you are convicted and sentenced to a period of imprisonment of two months.
The court directs that seven months of the sentence in Charge 1, 12 months of the sentence in Charge 3, three months of the sentence in Charge 4, one month of the sentence in the uplifted Charge 9, and one month of the sentence in the uplifted Charge 14, be served cumulatively upon each other and upon the sentence imposed in Charge 2, making a total effective sentence of 4 years. I order that there be a non-parole period of 2 years 6 months imprisonment.
47 I declare that you have served 35 days’ pre-sentence detention in relation to these offences, and such should be administratively deducted from this sentence as time already served.
48 The court orders that appropriate forfeiture and disposal orders be made. The court notes that I have signed them.
49 Finally Pursuant to s.6AAA I declare that but for your plea of guilty you would have been sentenced to a period of 6 years imprisonment with a non-parole period of four years.
50 HIS HONOUR: Mr Dove, you probably have a lot to take in there and no doubt you will be told precisely what it does mean. You have a frightful, absolutely frightful, criminal record and unfortunately that, for you, has to be taken into account when sentenced now. Perhaps fortunately for you, the legal principle referred to as totality benefits you to some extent in the sentence that I have ordered today is less than what you would have otherwise received in the circumstances because of that.
51 Be that as it may you are still going to be in prison for at least two and a half years. You really have to think about sorting yourself out . Drugs seems to be at the base of your criminality and that is tragic. But you have got, now, time to hopefully clean yourself up and in the event that you are granted parole, you will be under the supervision of the Parole Board for 18 months and during that time you may well be required to do a variety of things. I can only stress to you it is much in your interests that you do those things because the fact of the matter is, you are still a relatively young man. You keep on drugs, you will be back here, back here, back here and the sentences will become greater and greater and greater.
52 Indeed, you have spent a fair bit of time in prison in your life already. No doubt not an enjoyable experience but that is what you are going to confronted with unless you really sort yourself out and now is the time to start thinking about that and doing something about it. You understand?
53 OFFENDER: Yes.
54 HIS HONOUR: Yes, anything counsel want to add?
55
MS OVERSEND: Your Honour, I just note you've signed the forfeiture and disposal order. They've formally been made. I'm just not sure if
Your Honour's formally said that you make those Orders.
56 HIS HONOUR: Well - yes just hand up the Orders. I haven't got - I did say the court orders a forfeiture and disposal order's been made.
57 MS OVERSEND: That's fine then, Your Honour.
58 HIS HONOUR: That's covered, yes.
59 MS OVERSEND: That's fine, yes.
60 HIS HONOUR: No, 35 days I’m told was right, is that correct?
61 MS OVERSEND: That's correct.
62 HIS HONOUR: Anything you want to - - -
63 MR KENNY: Nothing from me, Your Honour.
64 HIS HONOUR: I'd appreciate if you do have a chat to your client, just explain exactly what has gone on.
65 MR KENNY: Yes I'll do that, Your Honour.
66 HIS HONOUR: A lot was said.
67 MR KENNY: Yes.
68 HIS HONOUR: Yes well thank you, people, we'll adjourn temporarily.
- - -
0
4
0