Director of Public Prosecutions v Durr

[2016] VCC 603

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

AT BENDIGO
CRIMINAL JURISDICTION

CR -16-00049

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS LEWIS DURR

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	5 May 2016
DATE OF SENTENCE:	13 May 2016
CASE MAY BE CITED AS:	DPP v Durr
MEDIUM NEUTRAL CITATION:	[2016] VCC 603

REASONS FOR SENTENCE
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Subject:         Armed Robbery
Sentence:      2 years' imprisonment/16 months' non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Ms K. Youngson

Pages 1 - 6

 

 

HIS HONOUR: 

1Nicholas Durr, you have pleaded guilty to one charge of attempted armed robbery.  The offence occurred on 23 September 2015.  You were arrested immediately after your offending and you have been in custody on remand ever since.  You have now served 232 days' pre-sentence detention.  The maximum sentence for the crime of attempted armed robbery is 20 years' imprisonment.  As you can see, the parliament regards this kind of offending as very serious and in passing sentence, I have taken the maximum penalty into account as I must.

2The circumstances of your offending are contained in a prosecution opening summary, which was tendered in evidence and read to the court by the prosecutor, Mr Cordy.  Your counsel, Mr Reynolds, did not suggest the summary was inaccurate in any way.  It is not necessary that I here repeat what is already set out in the summary, except in a very short version.

3You are a drug addict and at the time of this offence, you were drug and alcohol affected.  You first attended upon the Amcal Pharmacy in Echuca to receive your daily dosage of methadone.  Whilst doing so, you asked the pharmacist at that pharmacy whether the police would supply you with methadone if you were to be arrested.

4You then attended at another pharmacy where you approached the dispensary counter and made demands of the attendant that you be supplied with the drug Kapanol.  After you were told that Kapanol was not kept, you then demanded other drugs.  In your demands, you said, "If I don't get what I want, someone will get hurt."  Whilst this was occurring, you were seen to be reaching into a bag that you were carrying.  It was later discovered that you were in fact armed with a knife.  You did not directly threaten anyone with the knife but the shop attendant believed that you were able to carry out the threat you were making.

5I admitted into evidence victim impact statements as Exhibit B.  Although your attempted armed robbery can correctly be described as unsophisticated and lacking in any planning, it was nonetheless a frightening experience for those confronted with your crime at the time.  As I said at the time of the occurrence of your offence, you were drug and alcohol affected and you were described as behaving in an agitated and nervous way.  Although I regard your offending as being towards the lower end of the scale for this kind of offending, being as it were frenzied and unplanned, nevertheless the sentence that I must impose must have full regard to proper application to of the principle of general deterrence.  Shortly stated, those who seek to offend as you have whilst drug affected and for the purpose of obtaining drugs must be deterred from doing so.

6Mr Reynolds submitted the circumstances of your offending signified a cry on your behalf for help.  I accept that submission.  You have pleaded guilty and you indicated your intention to do so at committal mention.  For sentencing purposes, I treat you as having pleaded guilty at the first available opportunity.  For this, you are entitled to a reduction in sentence.

7I treat your plea of guilty as indicating genuine remorse.  In addition, you have save the time and cost of a trial and you have saved the victims of your crime from having to relive these events by giving evidence in court.  That is all to your credit and I have taken it into account at arriving at an appropriate sentence.  When you pleaded guilty, you also admitted a criminal record dating back to 17 September 2008.  This represents your eighth appearance before courts in this state.  It must be said that this offending represents a significant escalation in the level of your offending.

8In July 2015, you were dealt with in the Bendigo Magistrates' Court for a number of offences including theft and possession of cannabis.  You were convicted and the magistrate imposed a community corrections order for a period of 12 months.  This offending therefore occurred whilst you were the subject of a community corrections order.

9In his plea, your counsel conceded that in the short time between the making of that order and this offence, you had failed to engage with the Department of Corrections and you did not take advantage of the sentence imposed in July 2015, which was crafted to attempt to help you rehabilitate yourself.  I assume that was because of your mental health issues, but more importantly because at that time you were consumed by your drug addiction.

10I turn to your background and circumstances.  You were born on 2 October 1988.  You are now 27 years of age.  You were born in Melbourne and your mother was a drug addict and you were drug affected at birth.  Your natural father is unknown.  You were adopted at age four and you grew up and attended school in the Bendigo area, having been educated to Year 11.  At a young age, you were diagnosed dyslexic and as suffering Attention Deficiency Disorder.  You thus experienced learning difficulties, but nevertheless, in your early years you appeared to have made the most of a difficult situation, completing two years of an apprenticeship as a chef and until recently, you worked in hospitality and food preparation.

11You have had one previous relationship with a woman, which lasted five years and you have a son, now aged five, of that relationship.  You maintain a close relationship with the mother of your son with whom you have regular contact and where possible, you try to assist financially.

12At the time of this offending, you were homeless and living in a tent on the banks of the Murray River.  Photographs included in the depositions depict the sad and squalid circumstances in which you were living.  It would appear your life has spiralled out of control and you do not have the tools or the guidance to turn things around.

13I received into evidence a written reference from your mother.  What comes through from that document is that you are a decent person who unfortunately has ruined your life by the consumption of drugs and alcohol.  Your mother submits that you should have long-term residential rehabilitation and thereafter much longer term support.  I also received into evidence a psychiatric report from Dr Adam Deakin.  He refers to your significant drug and alcohol problem which has caused you at time to become psychotic, requiring numerous psychiatric admissions.  I received into evidence various reports from Bendigo Health relating to these admissions.

14Dr Deakin opines that your mental health has improved whilst in custody and you have benefited from abstaining from drugs and alcohol.  It has also served a second purpose of motivating you to turn your life around.  From my untrained observations during the plea, when you appeared in my court, you looked well.  Mr Reynolds submitted that I should impose a term of imprisonment that was not crushing together with a community corrections order.

15The prosecution submitted that a straight term of imprisonment with a parole period was appropriate.  A previous community corrections order has failed to assist you and I cannot see how it could work given your present transient lifestyle.  Were I to impose that kind of sentence, I believe I would be setting you up to fail.  In my view, you need a structure in which to abstain from drugs for a sufficiently long enough period and then some assistance to find accommodation and a pathway back to some kind of normal lifestyle.

16In passing sentence, I am mindful of the fact the sentence imposed must properly reflect general deterrence and appropriate denunciation.  The sentence above all must be just and have proper regard to your prospects for rehabilitation.  Without help, I regard your prospects as poor.  The sentence I will impose provides an appropriate period in gaol together with the period on parole during which I hope that you will receive the guidance that you need.

17On the charge of attempted armed robbery, you are convicted and sentenced to a term of imprisonment of two years.  I direct that you serve a minimum term of 16 months before being eligible for release on parole.  I declare that there has been 232 days' pre-sentence detention and direct that 232 days be reckoned as having been already served under the sentence passed this day and be deducted administratively.

18For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for the plea of guilty by you to the charge, I would have imposed a sentence of three years with a non-parole period of two years.

19I have been asked to make a forensic sample order pursuant to s.464ZF of the Crimes Act.  That application was not opposed and for the reasons stated in the order, I have signed it.  I have also been asked to sign a disposal order relating to your clothing, bag and knife seized upon your arrest.  The making of that order was also not opposed and I've it.

20Now, Mr Durr, I have made what is called a forensic sample order.  That means that upon request, a police officer can make a reasonable request of you to take a sample from you, do you understand?  Which in this case is a sample, just a swab from the inside of your mouth, do you understand that?

21OFFENDER:  Yes.

22HIS HONOUR:  You will be approached probably by the police whilst in custody to provide that sample.

23Are there any questions arising out of that, Mr Cordy?

24MR CORDY:  The only matter Your Honour mentioned that it was armed robbery, it is actually attempted armed robbery.

25HIS HONOUR:  I did, did I not read attempted armed robbery?  That is what I have got written down.  One charge of attempted armed robbery?

26MR CORDY:  Yes, that is right.

27HIS HONOUR:  Maximum penalty 20 years.

28MR CORDY:  You did at the start, Your Honour, but then later on, you mentioned on the charge of armed robbery instead of attempted armed robbery.

29HIS HONOUR:  I beg your pardon.  It is attempted armed robbery.

30MR CORDY:  Yes.

31HIS HONOUR:  That I have sentenced the prisoner on.

32MR CORDY:  Indeed, thank you.

33HIS HONOUR:  Any questions, Ms Youngson?

34MS YOUNGSON:  No, Your Honour.

35HIS HONOUR:  Very well.  Thank you, can you remove Mr Durr please?

36(Prisoner removed.)

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