Director of Public Prosecutions v Giambanis
[2013] VCC 967
•5 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00533
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL GIAMBANIS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 July 2013 | |
CASE MAY BE CITED AS: | DPP v Giambanis | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 967 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Parnham | |
| For the Accused | Ms S. Pratt |
HER HONOUR:
1 Michael Giambanis, at about 4.15 pm on 30 December last year you walked into a shop in Chapel St, Prahran. You spoke briefly to the woman who was working behind the counter and then left. You returned ten minutes later. She was still alone in the shop. You went up to her at the counter and said "Give me the money or I will shoot you". She immediately told you you could take the money and opened the register. You told her to take the money out and showed her the gun that you were holding. She handed over the money and you told her to give you more. You kept telling her to give you the money and threatening to shoot her. She gave you everything in the register and took the drawer out to show you it was empty. You scooped all the money into a plastic bag that you had with you and left the store.
2 This was recorded on the CCTV in the shop. The woman behind the counter, Ms Liang, can be seen putting her hands up when you first confronted her and then continuing to put one hand up whilst using the other to obtain the money and hand it to you.
3 It was only about an hour later that you were arrested by the police. You were playing the pokies at a hotel about 500 metres away from the shop. You initially denied committing the armed robbery, telling the police that you had been playing the pokies at the hotel all day.
4 When interviewed some hours later you made partial admissions. You asserted that you could not recall the detail, although you volunteered that you had gone into a shop and frightened a woman to get money. You said you “probably” wanted the money for alcohol.
5 Later in the interview when the details of the offence were put to you you said you “could have” committed the offence, although you could not confirm it and asserted that you had no memory of it. Despite those equivocal answers you admitted that you had a gun, you expressed remorse for your conduct and apologised to the victim. You said the gun was a toy gun and that you had thrown it into a bin behind the hotel after the robbery. Although a search was conducted the gun was not recovered and there is no evidence as to whether it was a real gun or a toy gun.
6 It is these circumstances that give rise to the one charge of armed robbery to which you have pleaded guilty and for which you now come to be sentenced.
7 You were clearly able to be identified from the CCTV footage. You were wearing the same clothes when arrested, as you could be seen wearing in that footage. The shop counter was fingerprinted and the prints raised from that match those that you later provided.
8 You were charged with armed robbery on the day of your arrest and remanded in custody where you have remained ever since. You first indicated your intention to plead guilty to that charge at committal mention in March of this year. As a result you were committed on a straight hand up brief. That means your plea of guilty must be given significant credit. It was entered at, I accept, the earliest possible stage and therefore the full benefit of sparing the victim the ordeal of having to consider the prospect of having to relive the events or give evidence has been avoided. It also obviously has a significant utilitarian value. It also is, I accept in the circumstances, consistent with the other evidence before me indicative of remorse for your conduct.
9 Although no victim impact statement has been filed by Ms Liang, who has retuned to China and is uncontactable, her witness statement and the CCTV footage make it clear that she was subjected to a frightening, even if short, ordeal. You were very close to her when you made your demand for the money and whether the gun you had was an imitation one or real, you clearly used it in a way that was intended to convey to her that it was real and your words and the way you held the gun were an indication to her that you were prepared to shoot her if she did not comply with your demands. Therefore in that sense, whether it was in fact a toy or real was irrelevant. However, the absence of evidence that it was real or that it was loaded means that I do not punish you for the aggravating feature, which would have existed had it been real and loaded, of the risk of it going off inadvertently and therefore causing even more harm than you have caused.
10 Although you told the police when interviewed that you were impaired by alcohol and anti-depressants (a bad combination at any time) at the time of the offending, it is clear that this was purposive conduct and required a degree of planning. You went into the shop and checked it out shortly before returning and demanding the money. You had a gun which you produced and a bag for carrying the money. This therefore is no impulsive crime. You do not come to be sentenced as a young person committing an offence for the first time whilst impaired by drugs or alcohol and unaware of the likely consequences of abusing such substances alone or in combination.
11 You were 47 years old at the time of the offending. You are now 48. And you have amassed a sufficient criminal history of dishonesty offences to have seen you sentenced to the full range of sentencing options; from non-conviction bonds through fines and community-based orders to terms of imprisonment required to be immediately served. The terms of imprisonment themselves have covered the full range; a suspended sentence, a short sentence which when time on remand was taken into account resulted in your immediate release after sentencing, and a longer sentence which resulted in your serving a minimum term and then being released upon parole. You were two days short of the expiration of your parole period at the time of the commission of this offence.
12 Your more serious offending has all occurred since 2010, or rather has been dealt with by the courts since 2010. Although your earliest court appearance, which was for theft, was over 20 years ago in 1990. Between 1990 and 2010 you were before a court on five occasions. Two of those were for dishonesty offences. Another, which had you sentenced by the County Court, resulted in your being placed on a community-based order for 12 months on a charge of wilful and obscene exposure.
13 Leaving aside sentencing or re-sentencing following breach proceedings for some of the rehabilitative sentencing options that had been imposed on you but which you breached, on my count you have been sentenced on seven separate occasions since 1990 for dishonesty offences and a number of those occasions involved sentences for multiple charges of obtaining by deception.
14 It is clear from your history, both the history of offending, even on reading of the type of offences and the types of sentences imposed or the terms of the sentences imposed, that alcohol abuse has been a long-term problem for you and at times it has brought you into contact with the criminal justice system.
15 Your very first court appearance in 1990 for theft led to the imposition of a bond with a condition that you not drink alcohol to excess. In 1995 you received a suspended sentence for driving whilst disqualified and I was told that sentence or the disqualification occurred as a result of a drink driving offence. You have had a number of sentences which have included rehabilitative conditions aimed at assisting you to address alcohol abuse.
16 You have no previous convictions for robbery or armed robbery but you have faced two separate charges or sets of charges for lower level assault or cause injury offences. In May 2010 you were dealt with for unlawful assault, assault police and resist police. In May 2011 you were dealt with for breaching the community-based order imposed in part in respect of those charges, but on the same day you were dealt with for additional charges which included one of recklessly cause injury. It is clear therefore that the sentence to be imposed must give some weight to specific deterrence and that this history of alcohol abuse and its connection with offending and repeated dishonesty offences must be taken into account when considering both specific deterrence and your prospects of rehabilitation.
17 Having said that I should also say that some of the previous convictions are clearly not directly relevant to the offending here, not involving dishonesty or alcohol related offending, and so I take them into account only as further illustrating the point that this analysis of your previous convictions has, that is that you have been before courts on a number of occasions at a time when you were a mature adult and therefore able properly to be able to reflect about the position you were in and to have some sense of the options that were available to you in terms of addressing the alcohol problems of stopping dishonesty offences and of trying to stay out of contact with the criminal justice system. But of course you are not punished again for your previous convictions.
18 It is also clear that punishment, denunciation and general deterrence must be given proper weight. Armed robbery is a prevalent offence and armed robbery with a firearm, whether it is an imitation or a real one, deserves significant denunciation and condemnation.
19 You targeted a woman alone in a shop in a busy retail precinct. Her employment in that shop in that area should not be regarded as high risk employment, that is risk of being held up by somebody with a gun and having her takings stolen. She was entitled to go to work without fear of having a gun pointed at her and her takings stolen. She was entitled to feel safe in a shop to which members of the public were invited, whose whole purpose was to be open to members of the public to go in.
20 On the material before me it would appear that although alcohol abuse and criminal offending had featured in your life for many years; it was your father's death some years ago that appears to have precipitated a spiral into less controlled drinking than in the past, to the onset of depression, to the onset of unemployment and to the commission of more serious dishonesty offences. Until then you had had a very good history of steady and responsible employment since you had left school, and that would appear to be something that you had managed to maintain despite the fact that you clearly drank to excess at times over many years.
21 From the materials before me it is clear that you are intelligent, personable and employable and I accept that you are committed to trying to bring your life back into order and to return to gainful employment upon release. You have held positions of responsibility, managerial positions in large organisations which shows that you are clearly capable of earning the trust of your employers and of having that trust rewarded by continued promotion and supervision of other people.
22 During your period on remand you have used your time well. You have achieved a position of trust as a billet and as a mentor for new, particularly young and vulnerable people on remand. This seems to be consistent with the way you conducted yourself during your previous periods of imprisonment, particularly the longer one where you were sentenced to a head sentence with a non-parole period.
23 You have participated in a drug and alcohol abuse course, one I am told is much more intensive than the one that you had previously undertaken and that had previously been offered to you when you were serving sentences. It is clear that you are, in that sense, accepting the supports that abstinence from alcohol and the imposition of a more structured routine can offer you and you have done well in accepting that and trying to make the most of it.
24 You have good family support. Before the offending you had been living with your mother and I am told and I accept that by agreement between the two of you it is proposed that you return to live with her upon your release. She is getting older and has some health problems and you want to provide support and care for her on your release. I accept that you have done so in the past, though clearly at times your substance abuse must have interfered with your ability to provide her with all the assistance and support she needs. There is also some extended family support for you and for your mother whilst you are incarcerated. It is clear that that is also providing support and assistance to you.
25 Although you have not always been assiduous in pursuing counselling and treatment for your grief following your father's death and the alcohol abuse in the past, there have been times when you have engaged appropriately both with alcohol and grief counselling services offered to you. You express a commitment to doing so again, both during the remainder of your time in custody and upon your release and I accept that that commitment is genuine, although your history shows that at times despite the genuineness of the commitment you have been either unable or unwilling to follow it through.
26 During this time on remand and during your previous longer term of imprisonment it is clear that you have benefited from the secure and structured environment and the abstinence from alcohol. During your release on parole following that longer sentence you were able, at least for some of that period, to remain offence free and to manage your alcohol intake. That should give you and the community some encouragement that with assistance and support you have shown a capacity to do so, although you clearly need greater assistance and greater commitment from yourself to sustain that.
27 All of these matters mean that I accept that the weight to be given to your prospects of rehabilitation is greater than what might otherwise have been expected from looking simply at the objective facts concerning your offending and incarceration history.
28 The other significant matter to take into account in assessing the appropriate sentence for you in my view is your health. You are HIV positive and since your remand it would appear that you have paid more attention to your health and the needs that that HIV status means than you had for some time in the past. It would appear your chaotic lifestyle beforehand had led you to neglect your health and the monitoring that is often more necessary for somebody suffering the condition that you do than it is for other people. However you have reconnected with the Infectious Diseases Unit at the Alfred Hospital and have now started on a course of antiretroviral treatment. That is something that would appear your clinicians had considered you should have started some time in the past. As a result of the reconnection and the facilitating of that by the prison authorities being able to take you to the Alfred rather than have to wait for visits from more generalised practitioners within Justice Health in the custodial environment, you have benefited. Your health is better as a result. And the re-established contact bodes well for your continued physical and emotional wellbeing during the balance of your time in custody and upon your release.
29 Having said that, to carry the burden and sadly what is still at times the stigma of HIV means that your time in custody is going to be more onerous for you than for somebody without that condition. One aspect of the burden is this, you suffer from a skin condition, a consequence itself of the HIV and perhaps some of the medication. That condition is unsightly and uncomfortable. Although during your time on remand you have been taken to the Alfred for the specialist care that they can provide, you have yet to see a specialist dermatologist.
30 As a result you need to wear clothes that cover all of your body, even in the warmest of weather, and you have been provided with single cell accommodation so as not to subject you to embarrassment or ridicule. It would appear from that that the prison authorities have been appropriately sensitive and nothing has been suggested on the plea to suggest you are suffering stigma from the authorities. They in fact have been not only sensitive to your needs but seem to have taken steps to ensure that you are not inadvertently or advertently subjected to stigma or discrimination by those ignorant of the consequences of your condition.
31 Whilst in some circumstances and for some people single cell accommodation in prison would be seen to be a benefit, it can also be conducive to loneliness and isolation and so the combination not only of the suffering, the condition, the physical discomfort that that causes being taken into account by me, I also take into account that the isolation could be seen to be an additional burden of imprisonment and I take that into account.
32 Therefore balancing these matters as best I can I have fixed upon a sentence that in my view properly reflects denunciation, deterrence, both general and specific, and punishment, but also should allow considerable incentive for you to continue to address your alcohol abuse, your depression and your grief response, and to reflect upon the dangers of continued incarceration that you face if you continue along the course that you have been in recent years. That is drinking to excess and committing offences of dishonesty. It will allow time for you to reflect on those dangers, particularly if you continue on a cycle of re-offending or more serious offending, as this one is, compared to your past, particularly offending accompanied by the threat of force and the use of firearms or imitation firearms.
33 The sentence I hope also appropriately reflects a more positive view of your prospects of rehabilitation than might otherwise have been thought as a result of the factors that I have identified.
34 Could you now please stand.
35 Michael Giambanis, on the one count of armed robbery to which you have pleaded guilty you are convicted. You are sentenced to be imprisoned for a period of four years and I fix the period that you must serve before being eligible for parole at two years. That is a two year gap between your head sentence and non-parole period.
36 I declare that you have spent 187 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
37 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of six years and I would have fixed a period of four years as the time that you had to serve before being eligible for parole.
38 I have been asked to make orders for the provision of a forensic sample for compensation and for forfeiture. They have either been consented to or not opposed and I propose to make those.
39 I have made a compensation order in the amount of $340 in respect of goods from Asia. That is the amount that was stolen by you. I have made a forfeiture order in respect of the amount of $130.65 which was the balance of the amount of money found on you when the police arrived and I have also made the order for the provision of a forensic sample. Now so far as that is concerned, I am making the order that that sample be by buccal sample, that is taking a scraping from the mouth. You will be provided with a swab like a cotton bud and asked to rub it on the inside of your cheek until a sufficient sample has been obtained. I must inform you that if you do not consent to and cooperate in the taking of that buccal sample under the supervision of an authorised member of the Police Force, then the police are authorised to use reasonable force to obtain that sample and are authorised also to use the more invasive means of obtaining that sample, namely the taking of a blood sample. Do you understand that?
40 PRISONER: Sorry, Your Honour, can you just repeat that?
41 HER HONOUR: Yes, there are two ways a forensic sample can be taken.
42 PRISONER: Yes.
43 HER HONOUR: One is the buccal sample from the inside of the mouth, the other is a blood sample.
44 PRISONER: Right.
45 HER HONOUR: I am making the direction that you provide the sample by the less invasive means, the buccal sample.
46 PRISONER: Yes.
47 HER HONOUR: If you do not cooperate with the provision of that sample then the police are authorised to use reasonable force for the taking of it and they are also authorised to do it either by buccal sample or by blood sample, and the taking of a blood sample is clearly a more invasive one because it requires the breaking of the skin.
48 PRISONER: Yes.
49 HER HONOUR: So do you understand that?
50 PRISONER: Yes, thank you.
51 HER HONOUR: Thank you. Any further orders that are required to be made?
52 COUNSEL: No, Your Honour.
53 HER HONOUR: Do the orders that I have pronounced reflect what I said I intended to do?
54 COUNSEL: Yes.
55 HER HONOUR: Thank you. Could you remove Mr Giambanis please?
56 (Prisoner removed.)
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