Director of Public Prosecutions v Duggan

[2020] VCC 2108

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-00888

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DUGGAN

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JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2020
DATE OF SENTENCE:	2 September 2020
CASE MAY BE CITED AS:	DPP v Duggan
MEDIUM NEUTRAL CITATION:	[2020] VCC 2108

REASONS FOR SENTENCE
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Subject:Armed robbery

Catchwords:              Guilty plea – robbed an associate of his motorcar –co-offender armed with a shot gun – returned the car next day – 4-year delay in prosecution – totality – parity

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R (2013) 249 CLR 571; Boulton v R (2014) 46 VR 308

Sentence:                  12 months’ imprisonment with 18 months community correction order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Jennifer McGarvie	Office of Public Prosecutions
For the Accused	Rosalind Avis	James Dowsley & Associates

HIS HONOUR:

1On 28 August 2020, you pleaded guilty to:

(a)   one charge of Armed Robbery (Charge 1); and

(b)   one charge of Possession of a Drug of Dependence (Charge 2).

2You have also pleaded guilty to the summary offence of Fail to Stop Motor Vehicle (Summary Charge 3).

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea.[1] They are agreed facts

[1] Exhibit A.

4On 14 May 2016, around 8:50 PM, you, with an unidentified co-offender, approached Wayne Lunn (‘Lunn’) in the driveway of his home. Your co-offender, who was wearing a mask, was holding a firearm which appeared to be a home-made, single barrel sawn-off shotgun. You were holding a torch. You threatened him with it and demanded his keys and wallet. In fear, he gave them to you. You told him to pull up his sleeves and, when he did, you took his watch and bracelet.

5While this was happening, another co-offender, Andrew Murray (‘Murray’), tampered with the number plates on Lunn’s car. You got into the car and, using stolen keys, drove off. Murray and the other co-offender left in another car (Charge 1 – Armed Robbery).

6Next day, at 10:37 AM, you were driving the stolen car. When police tried to intercept you, you drove away at a fast speed (Summary Charge 3 – Fail to Stop Motor Vehicle).

7Later, on the same day, you returned the car to Lunn.

8When police spoke to Lunn, shortly after the armed robbery, he chose not to reveal the identity of any of the offenders. Two days later, on 16 May 2016, he identified you as the man with the torch.

9Police arrested you on the same day. You had a small quantity of heroin in your possession (Charge 2 – Possession of a Drug of Dependence).

10When police interviewed you, you said:

(a)   you were present when the incident took place but had nothing to do with it;

(b)   you “tried to rectify the situation” by returning the car; and

(c)   you couldn’t recognise the two co-offenders because they were wearing masks.

11You admitted you drove off on 15 May when police tried to stop you. You said you were scared because you knew the car was stolen. You said you knew it belonged to a person named “Wayne”. You said others had stolen the car and you gave it back to him.

12You admitted you were wearing a black watch when you were arrested but denied stealing it.

13You were charged with armed robbery and other offences and remanded in custody. What followed next is set out in the helpful procedural chronology.[2]

[2] Exhibit B.

14On 30 August 2016, as a result of your contravention of a community correction order made on 2 June 2015, you were resentenced to 9 months imprisonment.

15On 28 September 2016 for driving offences, unlawful assault and other offending you were sentenced to an aggregate term of 4 months’ imprisonment which was to be served concurrently with the sentence imposed on 30 August 2016.

16On 5 May 2017, when you were committed to stand trial, you were granted bail and released from custody. You had been in custody since 16 May when you arrested.

17On 31 July 2018, you failed to appear in the Geelong County Court for a directions hearing.

18On 3 August 2018, your bail was revoked and a warrant was issued for your apprehension.

19On 20 December 2019, you were arrested and remanded in custody.

20On 20 April 2020, your trial date was vacated due to the COVID-19 disruption to jury trials.

21On 2 June 2020, you were sentenced to 5 months’ imprisonment which was time you had already served.

22Since that time, you have been remanded in custody in relation to this matter.

23The presentence detention available to you is:

·        16 May 2016 – 29 August 2016  106 days

·        21 January 2017 – 5 May 2017  99 days

·        20 December 2019 – 1 January 2020            13 days

·        2 June 2020 10 – 28 August 2020                  87 days

·        Total  305 days (not including 28 August 2020)

24On 18 October 2018, Her Honour Judge Cohen sentenced Andrew Murray for his involvement in the armed robbery, and a second armed robbery committed earlier in the day.

25His role was less than yours. He did not confront Lunn or threaten him or steal from him, as you did; he tampered with the number plates on Lunn’s car which you drove away. He left in another car.

26Her Honour found the earlier armed robbery was more serious and imposed a combination sentence of imprisonment and a community correction order. In assessing the seriousness of the armed robbery on Lunn, Her Honour took into account, despite the use of the firearm to threaten Lunn, there was no actual violence inflicted. She sentenced Murray to a community correction order for 18 months with 150 hours of unpaid community work for his part.

27You have admitted a criminal record.

28You have a number of prior convictions for violent, dishonest and driving offences, between December 1998 and February 2016.

29You have relevant convictions for violent offending.

30On four occasions, Magistrates have imposed prison terms upon you:

(a)   on 21 February 2012, you were sentenced to 13 months’ imprisonment with a non-parole period of 7 months for recklessly cause serious injury and affray;

(b)   on 1 September 2014, you were sentenced to 9 months’ imprisonment for burglary and theft unlawful assault and driving offences; and

(c)   on 21 November 2014, on two charges of recklessly cause injury, you were sentenced to 6 months’ imprisonment and a community correction order.

Personal circumstances

31You are a 39-year-old Koori man who was born on 2 June 1981. You were 35 years old when you offended.

32Your personal circumstances are set out in the report of Geoffrey Cummins, Consultant Psychologist, who assessed you on 18 August 2020.

33You were born at Orbost. Your childhood was difficult. You are the only child of your parents. Your parents separated when you were very young. You grew up between Orbost, where your father always lived, and Bairnsdale, where your mother often lived. She has five other children who are your half-brothers and sisters.

34You went to a number of different primary schools and several secondary schools. You left school after Year 10, when you were 17, and did farm work and bush track work through the Orbost Aboriginal Cooperative. You have done some seasonal picking work, and worked in a tanning factory and for eight circuses.

35You were badly injured in a motor car accident about 10 years ago and have not worked since. As you told Mr Cummins, when you came out of hospital you got onto heroin and scratch have been using ice and heroin for the last 10 years. You have also been in and out of jail for a lot of this time; and have been on and off methadone.

36Your father died 7 years ago. He was Irish and a regular cannabis smoker. Your mother is an aboriginal woman who is single and lives at Clayton. You reported being very close to her.

37In prison you are prescribed 30mg of methadone daily and work as a horticulture billet.

38You speak with your mother twice a week.

39You were doing the courses offered to you until the COVID-19 disruptions.

40As her General Practitioner’s letter confirmed, your mother has health problems including chronic obstructed airways, bipolar disorder and chronic back pain. You lived with her and helped to look after her before you were most recently remanded in custody and she would like you home again.

41In relation to your offending, you said you knew Lunn and you planned to take his car and sell it to get money to get food and buy drugs. You acknowledged you had done the wrong thing.

42While you deflected blame to others when police questioned you, you admitted you had his car and said you returned it to avoid “any… dramas”.

43You have always had low self-esteem and lacked a positive sense of yourself. You have a related history of behaving impulsively.

44In Mr Cummins’ opinion, you have an antisocial personality disorder and would benefit from anger management counselling, as well as rehabilitation for your drug dependence.

45Unsurprisingly, his view is, if you relapse into substance abuse and homelessness, you are a real risk of reoffending.

Defence submissions

46Ms Avis, who appeared on your behalf, in comprehensive written and oral submissions relied on the following factors in mitigation of penalty:

(a)   your guilty plea for its utilitarian value and demonstration of remorse;

(b)   delay of 4 years, which is only partly attributable to you, between the commission of your crimes and your arraignment;

(c)   your disadvantaged background;

(d)   your positive prospects of rehabilitation; and

47She submitted the difference in offending, as between Murray and you, can be sufficiently addressed by a combination sentence of imprisonment and a CCO.

48Overall, she submitted a combination sentence of prison equivalent to the time you have served in custody, approximately 10 months, and a lengthy community correction order, can meet all relevant sentencing purposes.

Prosecution submissions

49Ms McGarvie, who appeared for the prosecution, in constructive submissions, contended the appropriate disposition is a term of imprisonment which would require me to fix a non-parole period.

50She told me Lunn had “moved on” since you robbed him and was “not supportive of the prosecution” against you.

51She told me the prosecution accepted the personal factors put in your favour and acknowledged:

(a)   the mitigatory impact of the sentencing delay of four years since you offended; and

(b)   the significant utilitarian value of your guilty plea.

52She acknowledged a de-escalation in your offending since you committed this crime. Your only offending since was to state a false name when requested for which you were convicted and discharged on 2 June 2020.

53She also acknowledged the application of the totality principle in respect of the periods you have spent in custody since 14 May 2016 for offending which occurred prior to this time.

Impact on victim

54As the maximum penalty of 25 years’ imprisonment demonstrates, armed robbery is a serious offence.

55Since you offended, Parliament has legislated to remove a combination sentence for an armed robbery, of the kind you committed, as a sentencing option.

56Whilst Lunn has come to terms with your crime and does not wish to see you prosecuted, the armed robbery, committed in company with two co-offenders, one of whom was armed with a firearm, would no doubt have been frightening. Everyone is entitled to feel safe in their home and persons who jeopardise that safety must expect to be punished.

57In assessing the objective gravity of your offending, I take into account no violence occurred and you returned the car next day. Yours is a lower end example of the crime.

58Considering Lunn’s reluctance to cooperate with authorities, and the deferral of jury trials as a result of the public health emergency, your guilty plea has very high utilitarian value and you are entitled to a demonstrable sentencing benefit for it.

59I also accept you are remorseful.

60I accept your drug addiction, while of itself no excuse, is a product of your disadvantaged upbringing. The effects of childhood deprivation do not diminish with the passage of time. I accept your childhood exposure to violence and alcohol abuse may go some way to explain your recourse to violence when frustrated so that your moral culpability for the inability to control that impulse is reduced to some degree.[3]

[3] See Bugmy v R (2013) 249 CLR 571 at [42]-[44].

61I also accept the delay of nearly four years in prosecution is mitigatory. You have had the uncertainty of sentence hanging over your head for an unreasonable time and, as well, you have advanced your rehabilitation by not reoffending while you had your freedom, apart from one minor offence.

62To comply with the totality principle, I take into account, since this offending, you have served periods of imprisonment for offences committed previously.

63Parity applies to all co-offenders. Considering your substantially greater role than Murray’s, I consider consistency in punishment requires the imposition of a custodial sentence in your case.

64To enable me to consider different sentencing options, I have had you assessed for a community correction order and you have been found suitable. The recommendation comes with significant reservations because you have a history of non-compliance with community-based dispositions.

65Nevertheless, you engaged positively with the assessing officer and expressed a wish for drug counselling which has not been available to you in custody. You said when you are released from custody you intend to assist in the care of your mother, focus on any community correction order requirements and attempt to build a relationship with your daughter.

66In the guideline judgement of Boulton v R (2014) 46 VR 308, the Court of Appeal said:

“… a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape in some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”[4]

[4] Boulton v R (2014) 46 VR 308, [131].

67The court continued:

“The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offenders circumstances and the causes of the offending.”[5]

[5] Boulton v R (2014) 46 VR 308, [141].

68In all the circumstances of your case, I am satisfied a combination sentence can meet all sentencing purposes. And, as you have been found suitable, despite some misgivings about your prospects of compliance, I will make a composite order.

69By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

70Taking into account the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   On Charge 1, armed robbery, you are sentenced to 12 months’ imprisonment with a community correction order of 18 months. In addition to the core conditions, I impose the following special conditions:

§treatment and rehabilitation – drug;

§treatment and rehabilitation – alcohol;

§treatment and rehabilitation – mental health; and

§supervision.

(b)   Having regard to the relatively minor nature of the charges of possess a drug of dependence and failure to stop a motor vehicle, and also the requirement that your overall sentence is a just and appropriate measure of your total criminality, on each of those charges you are convicted and discharged without penalty.

71I declare you have served 310 days of your sentence by way of presentence detention.

72Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare, but for your guilty plea, I would have sentenced you to 3 years’ imprisonment with a non-parole period of 2 years.