Director of Public Prosecutions v Finn

[2017] VCC 1684

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02292

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON FINN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 28, 29, 30 August 2017, 1 November 2017
DATE OF SENTENCE:	13 November 2017
CASE MAY BE CITED AS:	DPP v Finn
MEDIUM NEUTRAL CITATION:	[2017] VCC 1684

REASONS FOR SENTENCE
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Subject:
Catchwords:  Armed robbery, Intentionally cause Injury
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	OPP
For the Accused	Mr J. Anderson	Sullivan Braham PIL

Pages 1 - 6

 

 

HER HONOUR:

1Jason Craig Finn, you are found guilty by a jury of one charge of armed robbery and one charge of intentionally cause injury; the maximum penalties for these offences are 25 and 10 years' respectively. 

2On Friday, 1 May 2015, Ramazan Ozcagli, then aged 66, ran and owned a small business called the Perry Street Food Store in Collingwood.  At approximately 6 pm, you, Peter East and another unknown man entered the shop; you were the first to go in through the back door. 

3You pulled a small black pistol from the front of your pants and demanded money from Mr Ozcagli, who initially responded positively but then instead of complying, grabbed your hand holding the pistol.  You tried to pull away and yelled at the other men to stab him.  East then pulled a long knife out and tried to stab Mr Ozcagli twice.  Fortunately, on both occasions he missed. 

4Mr Ozcagli then fell onto the ground with you.  You picked up a 10 kg dumbbell that was in the vicinity where you fell and hit Mr Ozcagli twice to the top of the head.  You then reached into Mr Ozcagli's pockets and took about $800 to $850.  You and East then walked out the back door while the unknown third man walked to the front of the shop. 

5Matthew Eaton, who was living on top of the store, heard banging downstairs and came to the assistance of Mr Ozcagli.  When he got downstairs he unsuccessfully tried opening the door.  He could not, as you and Mr Ozcagli were up against it, so he looked through a gap in the door.  He saw East with a knife in his hand.  East saw Mr Eaton and told him to shut the door or he would stab him.  Mr Eaton ran back upstairs and tried calling 000. 

6Soon after, Mr Eaton was able to enter the shop.  He saw Mr Ozcagli in the middle of the floor on his knees with blood running from his head.  Mr Eaton could see the unidentified male in the shop filling a box with cigarettes from the cupboard behind the counter.  He was then seen to jump the counter and leave. 

7Mr Eaton then chased the male towards the commission flats, though soon lost sight of him. 

8Police were contacted.  Cartons of cigarettes had been stolen and a hundred dollars in coins from the cash register.  Mr Ozcagli could not find the dumbbell that he had been struck with.  Police arrived and searched around the shop and the commission flats precinct.  They located a 10 kg dumbbell in a rubbish bin near where the car was parked. 

9Subsequent forensic testing connected you with the dumbbell.  CCTV footage in the area depicted three men in the car park area going towards the shop and returning later to the car, all during the relevant times.  These three men, you, East and the unknown male were linked to the car that was registered to
Mr East's girlfriend. 

10Mr Ozcagli was taken to the Royal Melbourne Hospital where he was treated for bruising, cuts to his left cheek, right leg and two superficial cuts to the top his head.

11When you were arrested and interviewed in March 2016 you said you did not recognise the car or the people who were depicted in the CCTV footage.  You admitted to knowing East, commenting that it could be him in the pictures.  You maintained you had no idea what you were doing on 1 May 2015.  You have been in custody in relation to other matters since 24 July 2015. 

12A victim impact statement has been sworn by Mr Ozcagli on 1 November 2017.  He remains having feelings of anxiety, nightmares and sleeplessness after this episode.  He has become more introverted and pessimistic about the future.  The shop closed soon after this happened and he has not obtained work since.  He regularly experiences dizziness and strong headaches and has difficult with everyday tasks.  He no longer feels safe in public places.

13I received a report from Jeremy Parker, psychologist, dated 5 October 2017 and I take that material into account.  You were born on 12 November 1971 and were aged 43 at the time of this offending.  You have a younger brother and sister and your parents separated when you were young.  You remained living with your mother, who re-partnered with a man who became the very negative influence on you.

14You grew up in Dandenong, though when you were aged 14 you moved to Bairnsdale with your father.  By this time, you had become involved in criminal activities, assisting your mother's abusive partner with burglaries.  Also by this age you had commenced using cannabis and amphetamines.  I note that at about this time you received a 12 month YTC sentence which, on appeal, resulted in you being placed on a bond and living with your father in Bairnsdale. 

15You went to school up until about Year 8 and you started then an apprenticeship as a fitter and turner and were able to keep out of trouble for a few years.  You have worked in the construction industry in Melbourne and then Sydney for about ten years. 

16You were in a relationship for about four years and have adult children.  You have two children from a different relationship, currently aged five and six years of age.  You were also in a relationship with another lady, Belinda, though the status of that is uncertain since she has discovered that you had fathered your younger children at a time when you were with her. 

17You have experienced mental health issues for much of your life, stemming from your childhood.  You informed Mr Parker that you had been placed on antidepressant medication for about 20 years and seen various psychiatrists in the community.  Results of the relevant psychological testing conducted by
Mr Parker were consistent with you suffering depression, anxiety and stress.  Your counsel, however, did not rely on Verdins principles as being applicable to you. 

18You have no current issues with alcohol, though you continued using drugs up until you have been in custody.  You started using heroin when you were in your early 20s.  you have a significant amount of prior matters since 1994, with numerous court appearances relating to driving, dishonesty and drug offending. 

19I note that some of your prior matters involve violence.  Between April 1994 and May 2008 you have had six court appearances that include such offending.  Another matter relating to violence occurred on 19 March 2015 and were dealt with by the court in October of that year.  I understand you were on bail for those matters when these matters occurred. 

20Given your significant history, which includes periods of incarceration and breaching various orders, I am somewhat guarded regarding your rehabilitation prospects.  Your counsel indicated to me that at your mature age, you are no longer wanting to continue with the cycle of being in the community and then returning to gaol for the remainder of your life.  You have indicated an intention to participate in programs whilst in custody and no longer on remand. 

21As noted by Mr Parker, you said that you will complete various programs whilst in gaol, including the violence intervention program and drug and alcohol programs.  You agreed it would be worthwhile to undertake therapy and relationship counselling upon your release so that you can improve your relationship with your partner as well as manage your psychological functioning to decrease the risk of you relapsing into drug use.  Without addressing these issues, you are unlikely to break the offending cycle of which you have been involved over the last 20 years. 

22This was serious example of armed robbery.  The offending occurred in company with two other males.  Two of you were armed, you with a gun and East with a knife.  The shop was a soft target with an elderly victim.  I was informed today that you were on bail at the time of the commission of these offences.  I accept that there was, however, no evidence of significant planning, with no use of disguises or methods to cover up the car or other scientific evidence that was later discovered. 

23East was sentenced by Judge Smallwood after pleading guilty to recklessly cause injury and armed robbery on 5 October last year, to total effective sentence of four years, six months, with a non-parole period of three years.

24Your counsel submitted that there was no basis on the evidence before me to distinguish between your role in this offending and that of East.  His car was used in the commission of the crime, he obtained the cardboard box to put goods in from the shop and he was armed with the knife and attempted to strike Mr Ozcagli with it.  You had a gun, though I make no finding whether it was operative.  You hit Mr Ozcagli with the dumbbell, causing the injuries to him. 

25You both have prior matters and although East has a prior conviction for armed robbery, you have a significant prior history, including for offences of violence.  I accept that apart from a plea of guilty, including to the lesser offence of recklessly cause injury as opposed to intentionally, there is not much material to distinguish you from each other.  The principles of general deterrence, specific deterrence, community denunciation and just punishment all have application to sentencing you. 

26I was informed that you were at the Magistrates' Court on a large consolidation of matters on 3 October 2015 and that, arguably, some concurrency may have been ordered with this sentence.

27I take into account the roughly seven month period in custody relating to that court appearance and another month imposed on 31 May 2016 from a totality perspective.  To be clear for the purpose of this sentence, I disregard the information provided by the prosecutor in respect of matters to which you were acquitted. 

28Taking all relevant sentencing matters into account, including matters in mitigation raised by your counsel, I sentence you as follows.

29In respect of the armed robbery, you are convicted and sentenced to a term of imprisonment of six years.

30In respect of the intentionally cause injury, you are convicted and sentenced to a term of imprisonment of two years.

31Six months of the sentence imposed in respect of Charge 2 will be cumulative, making a total effective sentence of six years and six months with a non-parole period of our years and six months.  What is the PSD, please?  Thank you, 579, does everyone agree with that? 

32MR ANDERSON:  Sorry, Your Honour, what was that figure again?

33HER HONOUR:  Five seventy-nine.

34MR ANDERSON:  Yes, I agree with that.

35HER HONOUR:  Ms Duckett?

36MS DUCKETT:  Yes, I agree with that, Your Honour.

37HER HONOUR:  All right, I declare 579 days PSD.  Did I make the ancillary orders the other day?

38MS DUCKETT:  The orders have already been made.

39HER HONOUR:  The four six four - I have already made them.  All right, thank you. 

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