Director of Public Prosecutions v Francis
[2018] VCC 1993
•28 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-18-01016
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE FRANCIS |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 28 November 2018 | |
DATE OF SENTENCE: | ||
CASE MAY BE CITED AS: | DPP v Francis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1993 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr S. Devlin | |
| For the Accused | Mr B. Cranswick |
HIS HONOUR:
1 I am going to impose a sentence of imprisonment of eight months to be followed by an additional community corrections order of two years and I will deal with the detail of that later. I have told you that now so that you do not have to wait to know your fate and I have done that in courtesy to you. I would ask you to courteously listen to my reasons for that sentence.
2 Luke Francis, you are to be sentenced for one charge of armed robbery and one charge of possessing a drug of dependence. You can remain seated. I will ask you to stand at the end. The maximum sentences are, respectively, 25 years and 12 months imprisonment.
3 You pleaded guilty before me on 20 November. I find that when interviewed by police on 3 August 2017 you made important admissions. The matter was listed for a contested committal but on 9 May it resolved. The committal went by hand-up brief and you entered a plea of guilty. It came before me on 20 November and, as stated, you pleaded guilty.
4 You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceeding shows. I find that your plea was early. I also find that you have expressed genuine remorse.
5 At your plea hearing also on 20 November Mr Devlin for the Crown tendered a summary of prosecution opening, CCTV footage stills depicting you at the armed robbery and the CCTV film itself. He provided the sentence of your co-offender, Tyson Paul. He was sentenced by Judge Meredith of this court on 20 February 2018. Mr Cranswick for you called your father, Brent Francis, to give evidence on your behalf. This morning, 28 November, the listed date for sentence, he tendered an eight page letter to the court by your mother, Michelle Harris. In exchange with counsel I have this morning described at some length relevant aspects of it.
6 The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter.
7 At about 6.30 am on 1 June 2017 you, Tyson Paul and a still unidentified co-offender committed an armed robbery at the BP Service Station in Brandy Creek Road, Warragul. You live and were living then on the same road. It is your local service station. Your victim was the attendant, Shayam Immani. You and your family knew him.
8 You were disguised wearing a hoodie and other bulky clothing. You carried an axe, the third man a baseball bat and Paul was not armed. You entered, menaced Shayam Immani with your weapon and demanded money. The other two went behind the counter. At one point you were tapping the axe blade on the service counter between you and your victim. You took approximately $300 from the till. The others took cigarettes valued at $226 from the office behind the service area.
9 The robbery was short lived, lasting about two minutes. You were in the store at the counter for about 30 seconds; but waited at the exit point. As they left one of the others took a bottle of soft drink.
10 No victim impact statement was tendered. However there can be little doubt that Shayam Immani was very frightened. Unsurprisingly, he presents that way in the CCTV film. Such victim impact is a relevant sentence consideration. His statement to police is consistent with that.
11 The police released part of the CCTV footage on local social media. They attended your home on 3 August and arrested you. In the course of that you were searched and found to be in possession of a small bottle which contained five mls or 17.1 grams of the drug of dependence, 1,4-Butanediol. The legislative small quantity threshold for that drug is ten grams. The trafficable quantity is 50 grams. Clearly you possessed this drug for your own use. I accept that you had been using drugs and alcohol and were probably badly affected by that.
12 You have only fractured recollection of the time leading to the event and, despite what I have said is genuine remorse, it was conveyed at the plea hearing that you can say little about the reason and what planning there was for the robbery. I would surmise, little of any sophistication. One notes again, for example, that this was your local service station. Your intoxication offers little or no mitigation.
13 You are now aged 26 and have been on bail for the approximate 15 months since the offending. You were born in Sale but then raised mainly in the Warragul area. Your parents separated soon after the family moved to Warragul. You were aged three. You stayed with your mother. You have a younger, adult sister. Your mother, father and sister attended court. You went to Warragul Regional College until year 11. After school you have completed an apprenticeship in roof tiling; but lack of financial opportunity in that trade has led you to work as a concreter. You have worked as that for about six years.
14 Your father's evidence gave a more complete picture. You first moved to live with him when about 17. The aim was to provide structure to your life. I would be obliged if you sat up straight, please.
15 OFFENDER: I apologise, sir.
16 HIS HONOUR: The aim was to provide structure to your life. You helped him in his Jim's Mowing business. Your father had retired early from an executive position at Bankwest. After a time you went back. You moved back to Warragul with your mother and sister. It was then that you began your apprenticeship. You returned to your father's home in a southern suburb of Melbourne after being charged with this offending. He has spoken in high praise of your efforts at work, in contributing to the family (you have a 15 year old step brother) and in abstaining from drug use.
17 You present to him as disgusted and in disbelief of what you did. This level of remorse is supported by your mother.
18 I accept that you worked very hard as a concreter. Mr Cranswick spoke of five to six days per week and up to 14 hours per day.
19 Your criminal record states one prior court proceeding. In June 2013, when aged 20, you were sentenced to a community corrections order for offences which included assault and recklessly causing injury. Contravention of conditions, not re-offending, led to variation of that order in May 2014. You then successfully completed the order.
20 Mr Cranswick stated a context to this prior offending of a relationship breakdown.
21 Armed robbery is a very serious offence, as reflected in the high maximum sentence of 25 years imprisonment. Robberies such as this are seen to be prevalent. They impact upon vulnerable targets who work in isolated and what can quickly become precarious circumstances. This robbery was committed in the early morning in the dead of winter. Your disguises would, I find, have been frightening. You carried and used a nasty weapon to frighten your victim.
22 As I have said, intoxication can afford little, really no mitigation. I accept a lack of planning and sophistication. As stated, the target premises reflect this. However, I also see an adverse feature in selecting and frightening a victim whom you knew.
23 Mr Cranswick put matters as to your respective role. I see, as I said to him, this crime to be one of classic concert or complicity. The responsibility lies with all three of you.
24 The circumstances here make relevant sentencing purposes and considerations of deterrence, particularly general deterrence in order to protect people like your victim, your moral culpability and the need both to condemn what you did and proportionally punish it. The only appropriate sentence requires a period of imprisonment.
25 However, there are also important moderating factors which go to effect that sentence, its length and the way it can be structured. They include the following matters.
26 (1). Your plea of guilty and cooperation. I am also persuaded that you feel a high level of genuine remorse.
27 (2). personal circumstances.
28 (3). Related to that are what I accept as good prospects for rehabilitation. Your parents’ evidence has persuaded me that you are addressing the need to rehabilitate, structure your life and move away from drug and alcohol abuse. Added to that you are still a young man and my sentence should, as well as punish, support such rehabilitation. It can also reflect a degree of immaturity.
29 (4). I also find that the 15 months since being charged with this matter is, although not immoderate delay in terms of criminal proceedings, it has had I would find, a considerable effect upon you in terms of stress and anxiety.
30 (5). The sentence imposed upon your co-offender makes it necessary to consider the question of parity. Judge Meredith also sentenced Tyson Paul for offences including burglary, theft and possessing proceeds of crime which were committed some weeks prior to the armed robbery. He had no criminal history but committed the armed robbery whilst on bail. He was 22, you were 25. Judge Meredith's total sentence was structured this way. he imposed imprisonment of six months for this armed robbery and a community corrections order for the other offences. He declared about eight months of pre-sentence detention. There are almost always differences between co-offenders. However, the most significant here is that Paul suffers an intellectual disability, having a full scale IQ of 63. It is clear from his reasons that Judge Meredith moderated in a like way to the case of Verdins a number of sentencing purposes because of this disability and its relevance to Paul's moral culpability. He referred to the High Court case of Muldrock. As stated, this is a significant difference between you and him. However, I should still have some reference by comparison in your sentence to that imposed upon Paul. I also bear in mind on this that I shall be imposing upon you the combined punished of a period of imprisonment and a community corrections order.
31 Mr Cranswick on your behalf submitted strongly that I should impose a community corrections orders without immediate custody, pointing to circumstances of the offending, your youth and movement toward rehabilitation. The seriousness of your offending precludes that. It would not be a sentence proportionate to what you did. There is a need for a period of imprisonment.
32 Because of the moderating factors identified, mainly personal to you, and the need for some comparison of the sentence of Paul, my sentence is significantly reduced from what the objective seriousness of the offending would require.
33 Having considered what I see to be the relevant matters I sentence you as follows. Stand up, please.
34 On charge 1, armed robbery, you are sentenced to eight months imprisonment. On charge 2, possession of a drug of dependence, you are sentenced to two weeks imprisonment. I make no order for cumulation. Therefore the total effective sentence is eight months. In addition, on both charges I impose a community corrections order of two years duration starting from your release from detention. The usual terms apply. The additional terms are that you perform over that period 350 hours of unpaid community work, that there be treatment and rehabilitation for drug use, that there be treatment and rehabilitation for alcohol abuse and that you undertake, as directed, programs to reduce or address this specific offending, that there be supervision of you. Take a seat, please.
HIS HONOUR: What other orders are sought?
MR DEVLIN: The only other order sought, Your Honour, is a disposal order and a draft has been forwarded to your associate.
HIS HONOUR: Yes, I will make that disposal order.
MR DEVLIN: Thank you, Your Honour.
HIS HONOUR: Had you not pleaded guilty, I would have imposed a sentence of five years with a minimum of three years. The disposal order is here, yes. I am going to get the order printed out now.
MR DEVLIN: Sorry, Your Honour, the community correction order on the report suggests that Dandenong will be the reporting office. I think that's because he is going to live with his father but can I check, Your Honour?
HIS HONOUR: I see. Whilst that is happening, I misstated the s.6AAA order. I would have imposed, had you not pleaded guilty, a sentence of four years with a minimum period of two and a half years.
35 MR CRANSWICK: Your Honour, I would leave the appropriate office as Dandenong.
36 HIS HONOUR: All right. That will be declared in the order. Yes, go on.
37 MR CRANSWICK: If he stays with his father upon his release then Dandenong would be the closest.
38 HIS HONOUR: Yes, good, thank you.
39 MR DEVLIN: Thank you, Your Honour.
40 HIS HONOUR: Stand up, please. I am going to read out the terms of the community corrections order to you and ask you to sign it. The order will last for two years and commences on completion of the period of imprisonment I have imposed. The usual terms are that you must not commit another offence which you could be imprisoned. If you did so you would return to be re-sentenced by me for this matter. You must comply with an obligation or requirement prescribed by a regulation which forbids you from attending any appointment, program or work site affected by alcohol or drugs, or in possession of illegal drugs.
41 You must report to and receive visits from Community Corrections. You must report to the relevant Community Corrections Centre, Dandenong, the address is here, within two clear working days of the order starting. You must let Community Corrections know within two days of a change of address or job. You must not leave Victoria without getting permission to do so. You must obey all lawful instructions and directions of Community Corrections.
42 The additional conditions are you must perform 350 hours of unpaid community work over a period of two years. You must be under supervision. You must undergo assessment and treatment for drug abuse or dependency. You must undergo assessment and treatment for alcohol abuse or dependency. You must participate in programs that address factors related to this offending as you are directed. Do you understand that?
43 OFFENDER: Yes, Your Honour.
44 HIS HONOUR: I will get you to sign. Take a seat. Is there anything else I need to do?
45 MR DEVLIN: No, Your Honour.
46 HIS HONOUR: In a short moment Mr Francis will be taken into custody. There are people that have come here to support you and they may, it must be quick, speak to you now before you go. If you wish to speak to your son. Mr Cranswick, I would be obliged if you at a discreet distance supervised, but it can't be for very long. Mr Francis must be taken into custody now. Thank you. Yes, thank you. Yes, thank you both for your assistance during the plea and today.
47 MR DEVLIN: You are excused, Mr Cranswick.
48 HIS HONOUR: You are excused, Mr Cranswick. I will stand down for a short time before I return.
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