Director of Public Prosecutions v Duff

[2017] VCC 411

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01714

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY ROSS DUFF

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2017
DATE OF SENTENCE:	10 April 2017
CASE MAY BE CITED AS:	DPP v Duff
MEDIUM NEUTRAL CITATION:	[2017] VCC 411

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gleisner	Office of Public Prosecutions
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

Pages 1 - 4

 

 

HIS HONOUR:

1Anthony Ross Duff, you have pleaded guilty to one charge of attempted armed robbery.  This offence carries the maximum penalty of 20 years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening upon plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

2At about 4 pm on 11 July 2016 you approached a stationary motor vehicle in Bell Street Preston.  The victim was the driver of that motor vehicle and her three-month-old baby was a passenger in the motor vehicle.  You approached the driver's side of the victim's motor vehicle.  You were armed with a metal baton and shears.  As you approached the driver's window which was half open you thrust the shears towards the victim in a stabbing motion and yelled, "Give me your money".  You were very aggressive.

3You then walked away to a nearby service station.  You left the baton and shears in a street sign in Bell Street.  You remained at the service station until the police arrived and you were arrested.  You were interviewed by police.  It was clear from your answers to questions that you were responding in a disjointed and disorganised manner and you made a number of long rambling and nonsensical statements.  I accept that this was evidence of a major psychotic disorder.

4I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  You cooperated with authorities.  I accept that you are genuinely remorseful. 

5I have been told something of your personal circumstances.  You are 40 years of age having been born on 30 September 1976.  You are a single man with no dependents.  You have an adult daughter.  You are a loner.  You have been a long-term user of illicit drugs.  You have had sporadic employment in the past.  You were on Centrelink benefits and you supplemented your benefit by washing car windows at the time of this offending.

6Detailed psychological and psychiatric reports have been tendered on your behalf.  You were exhibiting psychotic symptoms at the time of this offending and when interviewed by police.  I accept the opinion of Dr Zimmerman, psychiatrist, that you suffer from a major psychotic disorder, probably schizophrenia.  I accept his opinion that there was a link between your psychotic illness and this offending. 

7I find that the following principles enunciated in Verdins' case apply.  Your impaired mental functioning did reduce your moral culpability in respect of the offending conduct and it is appropriate to moderate the weight to be attached to both general and specific deterrence.  You are in custody and you have been using your time in custody in a constructive manner, working in the metal shop.  I accept the opinion of the psychologist Elle Gianvanni Winnie that imprisonment is not detrimental to your psychological wellbeing, on the contrary whilst in custody you have been sober and drug-free for an extended period and you have benefited from this extended period of abstinence.  There is no evidence that imprisonment will weigh more heavily on you than on a person in normal health.

8I assess your prospects of rehabilitation as being cloudy. 

9Against these matters in mitigation however, your actions were very serious indeed.  This was a violent act in a public place committed in broad daylight.  The victim was driving a motor vehicle and was stationary at a rail crossing.  An aggravating factor is that the offending occurred whilst you were on bail.  There was a lack of planning and you did voluntarily desist.  The offending only lasted for about 20 seconds.

10There is no victim impact statement but in her police statement the victim did state that when she got home she was still shaking from the experience.  She felt close to getting stabbed.  This was no doubt a terrifying experience for the victim. 

11You have admitted before me numerous priors convictions.  There are approximately 15 court appearances between 20 April 2015 and 6 December 1996 involving convictions for many offences including offences of dishonesty, drug offences and offences of violence.  The nature of some of these prior convictions, particularly for offences of violence is highly relevant to my task of sentencing you today. 

12The pre-sentence detention is 259 days including this date. 

13As well as the matters to which I have referred I must also take into account the need for general and specific deterrence, and although as stated I have moderated the weight to be attached to both specific and general deterrence. Specific deterrence is relevant in view of your extensive criminal history.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation for your conduct and generally to impose a just punishment.

14It is not in issue that an immediate custodial sentence is required.  Your counsel submitted that you would not consent to a community corrections order thus a combined sentence of imprisonment and a community corrections order is not a sentencing option.  In all the circumstances I am satisfied I have no alternative but to impose an immediate custodial sentence with a non-parole period.

15On the one charge of attempted armed robbery, having regard to all relevant facts and appropriate sentencing principles, you are convicted and sentenced to two years' imprisonment. 

16The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason, it cannot be fixed automatically.  All relevant factors and sentencing principles have to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

17In all the circumstances I direct you to serve a minimum term of 14 months before becoming eligible for parole. 

18As described by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 259 days inclusive of this day which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court. 

19I have made the disposal order sought by the prosecution in respect to the shears and pole. Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is three years with a non-parole period of two years' imprisonment.

20MS GLEISNER:  May it please the court.

21MR VAN ARKADIE:  As the court pleases.

22HIS HONOUR:  That covers everything?

23MR VAN ARKADIE:  Yes, Your Honour.

24HIS HONOUR:  Yes, thanks a lot.  I'll just sign this. 

25Yes, thanks a lot.  All done.

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