Director of Public Prosecutions v Farrugia

[2014] VCC 751

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00544

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR FARRUGIA

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2014
CASE MAY BE CITED AS:	DPP v Farrugia
MEDIUM NEUTRAL CITATION:	[2014] VCC 751

REASONS FOR SENTENCE
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Subject: Armed robbery – attempted armed robbery – possess drug of dependence – possess counterfeit money – undertaking to court to give evidence against co-offender
Catchwords:
Legislation Cited:
Cases Cited: R v Andrew Johnson; R v Broadbent
Sentence:3 years 6 months, with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai
For the Offender	Mr D. Plummer

HER HONOUR: 

CHARGES

1Victor Farrugia, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is 25 years' imprisonment, one charge of attempted robbery for which the maximum penalty is 20 years' imprisonment, one charge of common assault for which the maximum penalty is 5 years' imprisonment, and possessing a drug of dependence for which the sentence is 30 penalty units or one years' imprisonment.  Also knowingly possess counterfeit money for which the maximum penalty is ten years' imprisonment.

BACKGROUND 

2The offending relating to the three charges of armed robbery, attempted armed robbery and assault took place on Friday 29 November 2013 in the company of your co‑offender, Daniel Gallea.  At the time you were residing with Daniel and his mother and you agreed to provide back‑up for his plan to rob a drug dealer that he knew who lived in Tarneit.  However, the house at Tarneit that you attended at to commit the armed robbery was not the drug dealers house but a property owned by Mr Thomas Ryan.  

3When you and Daniel Gallea arrived at the property at approximately 7 p.m. Mr Ryan was in the garage using gym equipment with Blaine Brown, Scott Davis, Logan Hatina and Isaac Skehan. You went up the drive way to the garage and Daniel Gallea pointed an imitation pistol at the victims and told them "to get the fuck on the ground" or he would shoot them.  When they were on the ground you enquired as to the location of Jason and you were told there was no Jason here. 

4Holding the knife in your left hand, you walked over to Mr Ryan and punched him on the left side of the face with a your right fist.  He told you that you had the wrong place, however Daniel Gallea ordered him to get down on the floor with the victims.  You then went to the house. 

5In the meanwhile, Daniel Gallea remained in the garage and kept pointing the gun at the victims and threatening to shoot them if they looked up.  He also picked up a dumb bell and threw it at Mr Ryan's left upper arm.  You came back into the garage and Daniel Gallea demanded money and held the gun to Mr Skehan's head while you felt his pockets.  While this was happening Mr Skehan looked up and Gallea said "I told you to keep your head down" and kicked him to the left side of his head.  You then collected Mr Brown and Mr Hatina's mobile phones and car keys and drove off. 

6On Thursday 10 September 2013 you were arrested and during the execution of the warrant police located a bag containing a small amount of amphetamines and this relates to Charge 4 possess a drug of dependence.  In addition they found $630 cash in your bedroom which relates to Charge 5 of knowingly possess counterfeit money.

PERSONAL CIRCUMSTANCES

7Your personal circumstances were provided to the court by your counsel and set out in a report from Jeffrey Cummins dated 29 April 2014.  You were born on 3 September 1996 and you are now aged 47.  You were the youngest of an four children.  Your father was violent towards both yourself and your mother and your parents separated when you were 33. 

8With respect to your education, you left school in Year 9 aged 15.  You had a good work history until about two and a half year's ago.  You completed a four year motor mechanic apprenticeship with M and G Motors in Braybrook and you worked there for some 13 years. You have also worked with Westside Towing as is tow truck driver for some six years and for some two and a half years you were delivering concrete at High Tech. 

9You have been in two serious relationships, the first one being a 30 year de facto relationship from which you have two sons aged 27 and 22 and I believe that you have regular contact with these sons.  Your second relationship was a marriage that lasted for some ten years.  There is a son aged 16 and a daughter aged six from this relationship and they live with their mother in Melton. 

10As is not surprising given the nature of your offending, you have a history of drug use, including cannabis and heroin, rohypnol, amphetamines and methamphetamines.   It appears that you have used drugs throughout your life as a mood stabiliser.  You have ten prior court appearances for offences including trafficking, possessing amphetamines, thefts, burglary and being in possession of a controlled weapon.

DEFENCE SENTENCING SUBMISSIONS 

11In his sentencing submissions to this court your counsel conceded that general deterrence and denunciation are important considerations in this case, in particular with regard to crime of armed robbery. 

12With respect to specific deterrence, while it was accepted that it was a relevant matter in sentencing, your counsel relied on your lack of prior convictions for violent offending an your undertaking to give assistance to the police to submit that specific deterrence warranted lesser weight than might otherwise be justified. 

13In mitigation of your offending, your counsel relied on your plea of guilty which was at an early stage, the admissions made but you before and during your police interview, your remorse, which it was submitted was genuine and was supported by Jeffrey Cummins description of you in his report as being rigorously remorseful and apologetic regarding your offending.

14Your prospects of rehabilitation, which were submitted to be good given your previous work history, a lack of priors for violent offences and the fact that there were periods where you had remained offence free. 

15In addition your counsel attached considerable weight to the fact that you had given an undertaking to this court inform give evidence against your co‑offender both at the committal and at any following trial.  It was submitted that a considerable discount was appropriate for your undertaking to give evidence. 

16With respect to your undertaking your counsel relied on the case of R v. Andrew Johnson, where Mr Justice Nettle stated at Para 18:

"There is no necessarily correct amount of the informer discount in a given case.  For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.  In others it could be the information which the informer is able to provide is so valuable and the risk to which he may expose himself by informing are so great that a discount of 50 per cent would not be enough". 

17In addition, your counsel referred to the case of R v Cannuni, where the evidence given by offender was said to be of considerable assistance.  In sentencing the offender, the judge also took into account that he would be in protective custody so that imprisonment would be likely to be more burdensome than would otherwise be the case.

PROSECUTION SENTENCING SUBMISSIONS

18In this case the prosecution agreed that your undertaking to give evidence against your co‑offender was of considerable assistance.   However, he also submitted that the weight was reduced to some extent by number of different statements you had made in this matter.  In addition by the fact that there had been a photo board identification and another witness was going to give evidence against Mr Gallea. 

19With respect to the length of your sentence your counsel referred to the case of R v. Broadbent where the court referred to three categories of armed robbery, your counsel submitted that you fitted in the second category which provided that a sentence of three to five years' imprisonment will arise in the instance of a drug affected armed robbery by persons with prior convictions who are of mature years.  He also submitted that you would benefit from a longer than usual parole period.

SENTENCING REMARKS 

20In sentencing you I have taken into account your plea of guilty and all the mitigating circumstances mentioned by your counsel.  I have given you a discount for your plea ever guilty and for your undertaking against your co‑offender.  I have also taken into account that your time in prison will be more onerous given your undertaking.  I must warn you that if you were to renege on your undertaking to give evidence you would come back before this court to be re‑sentenced. 

21I accept Mr Cummins opinion that your prospects for rehabilitation are very much linked to whether or not you are able to remain drug free on a long‑term basis.  It appears to me that you quickly resumed drug use after serving your previous sentence.  Consequently, I have assessed your prospects of rehabilitation as being reasonable rather than good.  Now that I have heard that you are taking part in drug rehabilitation program, that gives me some hope that they can become good rather than reasonable. 

22In sentencing you I must also take into account specific and general deterrence and I do so.  The crime of armed robbery is a very serious one as is reflected by the sentences of 25 years.  It not only deprives victims of their property but also puts them in fear of their physical safety, and as we have seen in this case on the reading out of the victim impact statements it often has a psychological effect on the victims. 

23It was clear from the statements of Mr Skehan  and Mr Ryan that they were terrified by the ordeal and they are both seeing a psychologist to deal with the issues that have arisen from this robbery.

SENTENCE 

24Taking into account all the circumstances of this case, you are convicted and sentenced as follows:

25On the charge of armed robbery, you are sentenced to a term of imprisonment of three years and three months. 

26On the charge ever attempted armed robbery a period of 12 months. 

27On the charge of common assault, a period of six months. 

28On the charge of possessing a drug of dependence, a period of two months. 

29On the charge of knowingly possess counterfeit money, you are convicted and fined the amount of $700. 

30The base sentence is three years and three months.  I accumulate two months of the sentence on Count 3 on Count 1.  I cumulate one month of the sentence on Count 4 on Count 1.  That means that the sentence is it three years and six months.  I fix a non‑parole period of two years.  But for your plea of guilty and undertaking to assist the authorities, your sentence would have been six years and nine months to serve four years. 

31MR PLUMMER:  Sorry Your Honour, just ‑ ‑ ‑ 

32HER HONOUR:  Once you did the cumulation it was three years and six months and it was a non‑parole period of two years. 

33MS BHAI:  Yes, I just did not hear what Your Honour said in regard to the cumulation on Charge 2, but my friend ‑ ‑ ‑ 

34HER HONOUR:  On Charge 2 it is concurrent.

35MS BHAI:  Thank you Your Honour.

36MR PLUMMER:  Your Honour, just pre‑sentence detention.  It is 164 days not including today, Your Honour. 

37HER HONOUR:  I declare 164 days as pre‑sentence detention.  Are there any other matters that need to be brought to my attention?

38MS BHAI:  No Your Honour.

39MR PLUMMER:  No Your Honour. 

40HER HONOUR:  Thank you. 

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