Director of Public Prosecutions v Duffy, Russell Lawrence
[2013] VCC 368
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-10-00899
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL LAWRENCE DUFFY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 21 March 2013 | |
DATE OF SENTENCE: | 26 March 2013 | |
CASE MAY BE CITED AS: | DPP v Duffy, Russell Lawrence | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 368 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr A. McLennan | Victoria Legal Aid |
HER HONOUR:
1 Russell Lawrence Duffy, you have pleaded guilty to one charge of damaging property, one charge of theft, and one charge of armed robbery. The maximum penalties applicable to these offences are, in the case of damaging property and theft, 10 years’ imprisonment, and armed robbery, 25 years’ imprisonment.
2 The events that bring you to this court occurred on 19 March 2010. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to say the facts in this case are most serious, but I am sure you are well aware of that.
3 Briefly, by way of summary of your offending. At approximately 4.00 am on 19 March 2010, you walked to the corner of Dobinson Street and Scott Court, Echuca. At the time, you were in possession of a metal bar approximately one metre in length.
4 At that location was a 1995 Toyota Lexcen motor vehicle parked in the street. You used the metal bar to smash all but one of the vehicle’s windows, including the front windscreen and the rear window. The occupants of the house where the vehicle was parked were known to you, and confronted you. You decamped on foot. In total you caused approximately $2000 worth of damage to that motor vehicle.
5 At approximately 4.45 am that same morning, you attended at the Caltex Service Station at the corner of Ogilvie Avenue and Northern Highway. You requested a packet of Peter Jackson cigarettes valued at $16. When you were handed the cigarettes you walked from the premises without paying for them.
6 Shortly thereafter, at about 5.19 am, you attended at the Caltex "All Night" Service Station on the Northern Highway in Echuca. You appeared agitated and asked the staff to cook you two pieces of fish. You waited a short time before leaving.
7 About 30 minutes later, at 5.51 am, you returned to the service station and approached the counter. At the counter then was a 20 year old female staff member. You asked her for a packet of Long Beach 40s cigarettes. The console operator recognised you as the person who had ordered the fish earlier and asked if you wanted the fish. You said you did, and you also wanted $200. The staff member asked if you wanted to get the money from your bankcard, and you replied "No, from the till."
8 You then lifted your shirt and exposed a knife sitting in the waistline of your tracksuit pants to her. The knife was approximately 30 centimetres in length. You then said, "See this?", and "Look, I’m being nice about this."
9 The staff member told you she needed the manager to open the till, and you said, “Just open it.” She was terrified, and opened the till, grabbing all the $50 notes in the till. You said to her, “Just give me all the $50s and $20s.” She did as she was directed and handed over four $50 notes and four $20 notes. You took the money and left the store.
10 Later that day, at approximately 6.30 pm, you attended at the Echuca Police Station, were arrested in relation to these matters and interviewed. In that interview you made full admissions to your offending. Your explanation at the time was, in relation to the damage to the vehicle, “His daughter threatened to stab me”, in relation to the theft of the cigarettes, that you needed cigarettes, and the armed robbery, you needed the money.
11 You have pleaded guilty to these offences, and such is relevant in mitigation of your sentence.
12 You also made admissions to the police, as I have previously stated, regarding your involvement in the offending, and further, at a committal mention indicated your intention to plead guilty to these charges. Thereafter, the matter has proceeded expeditiously to a hearing in this court. You are entitled to have the fact, not only of your plea of guilty but of the stage at which you indicated your intention to plead guilty 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, and witnesses have been spared the need to give evidence upon your trial.
13 You were quickly apprehended, and when apprehended readily admitted what you had done. In fact, you were the one who attended at the police station, without the police having to actually find you. I accept that in the circumstances your plea of guilty indicates remorse for your offending.
14 You have admitted a number of prior court appearances, commencing in June 1996 and most recently, prior to this offending, in December 2000. The bulk of these appearances were in New South Wales, your appearance in 2000 in Victoria.
15 Relevant to your offending before me are your prior offences including dishonesty and destroying or damaging property. I note you do not have any prior convictions for armed robbery.
16 Mr McLennan, who appeared on your behalf, prepared a comprehensive written outline of his submissions and addressed those during the course of your plea hearing.
17 You acknowledged the charges against you were very serious. It was conceded by Mr McLennan, the only appropriate sentencing disposition open to the court was that of a custodial sentence. Both of those matters were, in my opinion, sensible concessions.
18 Mr McLennan submitted that you have pleaded guilty to these offences, you made full and frank admissions to the police, and your plea of guilty was entered at an early stage. I have already addressed this and agree.
19 I was told something about your background and history. You were born in Launceston, and were 31 years of age at the time of this offending and are now 34.
20 You were raised in Deniliquin by both your parents, who remain married. Despite your parents being able to provide the basics of life, you nevertheless grew up in a disadvantaged area of town, frequented by undesirable characters.
21 You are the second eldest of seven children. You attended school to Year 11, ending your education at 16, then commencing employment at the local abattoir in Deniliquin. You worked there as a cleaner and also in general duties intermittently for about 13 years.
22 You also spent short periods of time working in Hillston, New South Wales, and Shepparton.
23 In 2002 you commenced a relationship with the mother of your children. There are two children of that relationship, a boy, 10, and a girl, 9. You both owned a house in Deniliquin, and the relationship lasted for about two and a half years before it ultimately broke down in 2004.
24 You have continued to have intermittent contact with the children following the breakdown of the relationship, but unfortunately their mother was unable to care for them properly and they were taken into foster care, where they live with their maternal grandmother. As I understand it, you last saw them in 2012.
25 In 2008, while still in Deniliquin, you formed a relationship with your former partner, Chrissie Cochrane, the tenant at the home where the vehicle, the subject of Charge 1, was damaged. Ms Cochrane frequented a hotel at which you had been staying. Shortly after the relationship formed you moved into her home and lived with her in Deniliquin for four months.
26 Ms Cochrane moved to Echuca in 2009, and you followed her for three months, and you continued to live together. In Echuca you found work at a local abattoir for about six months, but when that ceased you were in receipt of the Newstart allowance. When you were living with Ms Cochrane you continued to pay her $200 a fortnight in board.
27 You instructed Ms Cochrane was prone to mood swings and became more difficult to live with. As a result, you moved out for short periods of time, only returning at her request. You ultimately moved out of her home in early March 2010.
28
Turning to the offending behaviour before me. You instructed that on
19 March you had been visiting your cousin, who lived about two blocks from Ms Cochrane. While you were at your cousin’s address, you decided to visit Ms Cochrane as you had not seen her for four days. When you arrived at the house she told you she was going to McDonalds with her children and their father, being her former partner, and that you should come back later.
29 You left and returned after dusk as requested. In the meantime you had consumed approximately six cans of beer. At the house you briefly spoke with Ms Cochrane and were approached by her former partner, who without warning pushed you to the ground.
30 Police were called and you were arrested and conveyed to Echuca Police Station, where as I understand it, you spent a number of hours in custody for being drunk before being released later that evening.
31 After release, you returned to your cousin’s house. You walked past Ms Cochrane’s residence and noticed that her former partner’s car was still parked in the driveway. You were frustrated with the fact that you had moved out of the house to give her some space, only to find that her former partner had returned. You felt aggrieved that you had earlier that night been set upon by her former partner and had been arrested. Against that background, you damaged the motor vehicle, the subject of Charge 1.
32 Turning to the charge of theft and armed robbery. You left Ms Cochrane’s house and returned to your cousin’s. You said you were fearful at that stage her former partner may retaliate, so you grabbed a knife from the kitchen drawer for protection.
33 You were in need of cigarettes, left the house and attended at the Caltex Service Station. At the time of obtaining the cigarettes you did not have the means to pay for them. You then returned to your cousin’s house again, later attending the other service station, requesting cigarettes and money.
34 At the time of this offending, Mr McLennan submitted your life was unstable, that your relationship with Ms Cochrane was chaotic, and your actions were as a result of you being highly emotional, intoxicated, and under financial strain.
35 You were bailed on the Monday following your admission of these offences, with a condition that you live with your parents in Kyneton. You complied with that for the first month.
36 In April 2010, you were contacted by Ms Cochrane who told you she was undergoing chemotherapy, and requested you return to live with her to support her during her treatment. You returned to Echuca, staying approximately two months before issues arose again between you. You then returned to your parent's home for two days before moving to Melbourne and thereafter you then spent two years living an itinerant lifestyle, living in parks and guesthouses.
37
In that time, however, you engaged positively with a number of support services in Melbourne, and expanded your musical talent through the
St Marks Community Centre in Fitzroy and the Prahran Mission.
38 You re-partnered in October 2012 and a child of that relationship is due to be born in the middle of 2013.
39 In the two years since this offending, you have not come to the notice of police for any further offences. You were ultimately arrested for these offences on a warrant as a result of a random check by police, not as a result of further offending.
40 Turning to your prior criminal history, you attributed that in part to youthful delinquency and associates you had in the town in which you were raised. Alcohol had been a primary contributor to your prior offending.
41 Mr McLennan again submitted that despite the delay in this matter being concluded at court, you had expressed remorse for your offending and had pleaded guilty and had also made full admissions to police. Whilst the delay has been created by your absence from the initial plea hearing date, you have nevertheless in two years not offended, and such is relevant to your rehabilitation prospects.
42 Mr McLennan placed emphasis on the fact that you had not committed any further offending in those two years. I have also noted that, and I discussed at length with him that issue, as the transcript will reveal. It is particularly relevant that you were able to stay out of trouble, given your lifestyle prior to those two years, which provides hope of your rehabilitation. You have, in the last two years, been able to make some positive changes to your lifestyle. Mr McLennan urged that a longer than usual parole period would be appropriate in your case.
43 Mr D’Arcy made submissions on the range suggested by the prosecution, and I discussed that with him at some length, and again the transcript will reveal that discussion.
44 Also before me was a report from Prahran Mission prepared by Chris Goodall, dated 20 March 2013. The author confirmed you attended Open House for approximately two years and that you had been homeless for that period. Mr Goodall was a facilitator at the Prahran Mission’s music groups and in that role had contact with you. He described you as a keen guitarist and also that you expressed an interest in learning the piano. Your skills were such that you were asked to record your own original instrumental song for a CD the Mission was making. Mr Goodall stated in his experience you had been polite and respectful towards others at the Mission, and had contributed to Open House, not only musically but in support of your peers.
45 There was also a report before me from Yvette Armstrong, Anglicare, dated 20 March 2013. She confirmed that Anglicare Victoria had known you for approximately three years and that you have been a regular client of their services. They offered meals, showers and emergency relief to people experiencing homelessness. She understood you had been sleeping rough when you were in Melbourne. She described you as pleasant and well mannered and said you got on well with clients and staff. She further confirmed you were a very accomplished musician. The Mission was able to fund six piano lessons for you at the end of 2012. In custody, they said they would offer you support through the Anglican Criminal Justice Ministry, and, as I understood, you have had contact with one of the chaplains at Melbourne Assessment Prison. That support would continue upon your release.
46 Regarding your rehabilitation prospects, you do have a significant prior criminal history. However, I must seek to maximise your chances of rehabilitation as there may be when sentencing you, and the last two years gives me some confidence in that regard, particularly when I note your regular offending behaviour in the years prior to 2009. I am comforted that despite living in a homeless environment for two years since this offending, you have not come to the attention of police by way of further offending.
47 There are no victim impact statements in this matter. The victims apparently had been asked, but no statements were forthcoming.
48 I have, however, read the depositions and accept that the shop assistant, relevant in particular to Charge 3, would no doubt have been frightened by your demand for money and display of the knife.
49 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this, and in particular I am referring to the offence of armed robbery. In particular I note the "soft target" at the service station, the subject of Charge 3.
50 There is also an element of specific deterrence required when sentencing you as you do have a prior history, and of course the offending before me involved three separate incidents, albeit on the same day.
51 I must also consider protection of members of the community from you and bear in mind the likelihood of your re-offending of which I have some concern, although note it seems your relationship with Ms Cochrane is at an end and you have not re-offended since this offending before me.
52 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
53 I sentence you as follows.
54 On Charge 1, you are convicted and sentenced to 8 months’ imprisonment.
55 On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
56 On Charge 3 you are convicted and sentenced to 2 years and 6 months’ imprisonment.
57 Charge 3 is the base sentence, and I direct that 3 months of Charge 1 be served cumulatively upon Charge 3, and 1 month of Charge 2 be served cumulatively upon Charge 3. For clarity, each order in relation to cumulation is cumulative upon each other and upon the base sentence.
58 That results in a total effective sentence of 2 years and 10 months’ imprisonment, and I direct that you serve a period of 12 months before you are eligible for parole. That, in my opinion, is a low period in custody. I have given you what I regard as a longer period on parole.
59 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences by jury verdict following a trial, I would have sentenced you to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years.
60 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 51 days in custody, up to and including yesterday, 25 March 2013, and I direct this be entered into the records of the court as pre-sentence detention.
61 The prosecution made an application for a forensic sample pursuant to s.464ZF Crimes Act 1958. This was not opposed by counsel on your behalf, and I make the order in the terms sought. It is for a saliva sample and I must tell you that the authorities may use reasonable force in order to obtain that sample.
62 The prosecution also made application for a disposal order in relation to the knife and some clothing. This was again not opposed by counsel on your behalf, and I make the order in the terms sought.
63 Were there any other matters? Now, what about the PSD? Was that right?
64 MR D'ARCY: Yes, Your Honour.
65 MR PAYNE: I believe so, Your Honour, yes.
66 HER HONOUR: All right, excellent.
67 HER HONOUR: Now, did I say this? It's a sample from the mouth; it's the seriousness of the circumstances, the offending; the prior convictions; and it was not opposed. I think that takes care of everything.
68 MR PAYNE: Just one minor matter, Your Honour.
69 HER HONOUR: Sure, what is it?
70 MR PAYNE: Two references were tendered on behalf of Mr Duffy. I just ask that they be released from the court file, if copies can - - -
71 HER HONOUR: All right, you mean the Mission and the other one?
72 MR PAYNE: Yes, Your Honour.
73 HER HONOUR: We'll take a copy first. Is that all right?
74 MR PAYNE: Absolutely, yes.
75 HER HONOUR: So you want the originals back?
76 MR PAYNE: Yes please.
77 HER HONOUR: There's no reason why not. Ms Jackson, can you do that, photocopy the two - that was the Mission and Anglicare and we keep the copies and release and remark the exhibits as "copies of"?
78 MR PAYNE: Thank you, Your Honour.
79 HER HONOUR: Yes, not a problem with that. Thank you very much.
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