Director of Public Prosecutions v Gill

[2015] VCC 1631

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00374

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW GILL

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2015 (arraignment); 16 November 2015
DATE OF SENTENCE:	16 November 2015
CASE MAY BE CITED AS:	DPP v Gill
MEDIUM NEUTRAL CITATION:	[2015] VCC 1631

REASONS FOR SENTENCE
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Subject:  Sentencing; attempted robbery
Catchwords:              Plea of guilty; prior criminal history; totality and pre-sentence detention
Legislation Cited: Sentencing Act 1991 s 6AAA
Cases Cited:            R v Renzella (1997) 2 VR 88
Sentence:                  236 days imprisonment (PSD).  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C G MacDougall	OPP
For the Accused	Mr M Page	James Dowsley and Associates

HER HONOUR: 

1Andrew Brian Gill, you have pleaded guilty to a charge of attempted robbery.  The maximum penalty for that charge is ten years' imprisonment, but for the reasons which follow, you will not be receiving a sentence anywhere near that long.

2On 27 August 2014 in Church Street, Richmond, you were with a woman with whom you had been in a relationship named Jasmin Schmidt.  She had called out to get the attention of a group of three people standing at or near a tram stop.  You approached them with her.

3One of them, Mr Snowden, had been selling copies of the Big Issue at the corner of Church and Victoria Streets, and then he and his companions had walked further down Church Street and were, as I have said, at or near a tram stop. You grabbed Mr Snowden from behind in what has been described as “a sort of headlock” and said to him to give you his cash and you repeated that several times.  He pulled free from you, and he and the other man ran down Church Street, but he realised that his girlfriend was not with them and looked back and saw you and your female companion were with her.  He used the other man's phone and called police.

4Police attended at approximately 9.30 pm and approached and arrested you and your female companion after obtaining a brief description of what had occurred from Mr Snowden and his companions.

5You were interviewed by police, denied approaching any male or doing anything to him, and you specifically denied attempting armed robbery of him as that was the allegation put to you.  You also denied using or approaching anyone for drugs as that had been mentioned. Otherwise, you made "No comment" to other allegations put.

6You were charged with attempted armed robbery, recklessly causing injury, and making a threat to kill Mr Snowden's girlfriend.

7You were remanded in custody that day and have remained in custody ever since.  A committal hearing was held on 12 February this year during which both Mr Snowden and Ms Priest, his girlfriend, were cross-examined.  The trial of those charges was listed to commence today, but last Wednesday you pleaded guilty instead to a single charge of attempted robbery.

8Your plea of guilty to this charge entitles you to considerable leniency in the circumstances.  Although only days before a trial was to begin, which would normally be taken as far from the first available opportunity, I note that the charge to which you did plead guilty is less serious than the charges that there were against you, and there were of course three charges that you were facing.

9Further, even in the week before the trial was to begin, by pleading guilty, there is considerable utilitarian value in avoiding the time and cost of the trial. Further, in this case, I am well aware, because of an application that I was hearing last week, that the adducing of Mr Snowden's evidence was going to be complicated.  It would either have been by video link for which the prosecution had made application, or he would have had to be brought to Victoria in custody as he is currently a prisoner in New South Wales. That would have been particularly complicated for him personally, and potentially onerous for him as there was a risk of him losing his opportunity to be granted parole this week. By pleading guilty and avoiding the need for him to have to give evidence at all, you have saved him the personal stress of all of that occurring, as well as showing a willingness to facilitate the course of justice.

10Whilst this is a case in which remorse itself is not readily apparent, I do place weight on your plea as having saved Mr Snowden further distress.

11I take into account that approaching a person in the manner you did to rob him in a public street, calls for sufficient punishment to make clear to the community that such offences will not be tolerated.  Further, the message must be sent that the protection of the law extends to people such as Mr Snowden who himself was homeless at the time.  That he had been selling a magazine well known to be the source of cash receipts made him vulnerable as did his homelessness.

12Street offences, as they are often known, are apparently part of how you have operated over various periods in the past, and no doubt as a result of your own personal circumstances of some hardship from time to time, and certainly of drug abuse from time to time. However these sorts of offences should not be regarded as minor, even if unfortunately all too common.  For that reason, general deterrence must be given significant importance - that is, to send a message to the community that engaging in this type of offending will attract serious punishment.

13In assessing the objective seriousness of this offence and your role in it, I accept that the incident was only brief, and that Mr Snowden himself managed to pull away and escape.  That is what makes the charge an attempt. It is not now alleged that you used any weapon.

14You were, however, on bail at the time and ought to have been particularly conscious of the need to refrain from further offending.  In the circumstances, I agree with the submissions on your behalf that this instance of an attempted robbery is in the low range of possible offences of this type, although I do not put it at the lowest possible level.

15I turn now to your personal circumstances.  You are now aged 44.  I have been given a brief outline of your personal background.  Your childhood was not ideal with your parents separating when you were young, and your stepfather apparently deciding that your small build suited you to being trained as a jockey.  This occurred in your teens and apparently you were subjected to quite harsh and even abusive behaviour by your stepfather.  You apparently left school for this training and had no opportunity to seek later education.

16As a result of the hardship from your stepfather, you moved to live with your father, but he suffered mental health problems I am told, which made him unable to properly care for you, and you left home altogether at about aged 16.

17You have a history of substance abuse dating from your teens including alcohol and different drugs, but mainly heroin, although there were intervals when you managed to cease taking that drug.

18I am told that you have had work over the years although not consistently. The work you have done at various times has been as a diesel mechanic, a truck driver and with horses.

19You have a criminal history stretching over the last 15 years which has mainly involved relatively low level offences of dishonesty, street dissent such as hindering police or a protection officer, a significant number of driving offences including for driving whilst unlicensed or disqualified, and you have been subject to numerous types of sentencing orders including some for short periods of imprisonment, some of those after breaches of earlier orders. Your criminal record does you no credit and I cannot overlook that it reflects that you have engaged in various types of offending, and that you have failed with some of the previous orders imposed, including some rehabilitative orders.

20However, the most relevant prior offences seem to be a charge of robbery dealt with in 2010, but which I am told had been committed in 2007, and there is more than one unlawful assault, although there have not been so many of those as to reflect that you engage often in violence.

21I accept the description that you have engaged for many years in what is commonly categorised as relatively low-level street crime, and often associated with the type of substance abuse in which you also engaged.

22I am told that while in custody this time, you have ceased using drugs, and although still with traces of methadone in your system in August and September of this year when screens were done, you were shown to be clear of all other drugs. I am told that you have, in the last few weeks, also ceased taking methadone.  You regard yourself as clean of drugs and able to start afresh once released from prison.

23Of significance in your circumstances is that you have spent more than the last 14 months in prison, although not all of that will count towards this sentence.  Because you were on bail at the time of this offence, once remanded for this offence or this set of offending, your previous bail was revoked and the period from 2 September until 30 March was spent on remand for both the previous charges and the one that I deal with today.

24I am told that on 31 March 2015, you were dealt with in the Magistrates' Court for a considerable number of charges consolidated from instances of offending dating back as far as July 2011, but also some occurring in
April 2013. You were sentenced to 300 days imprisonment, with that period being declared reckoned served, and 208 days of that 300 days was also a period of remand for the matter on which I am sentencing you.

25I am told that you have applied for leave to appeal out of time against the sentence the Magistrate imposed.  That application has not yet been decided.  I cannot speculate on what will result from that application but I note that if the application were withdrawn or failed, the 208 days will have been utilised on that sentence.

26If the application succeeds, then a judge of this court, on appeal, might release some of that 208 days in resentencing you, or potentially could impose an even greater sentence.

27Because of that pending application, it is argued that it should be used as time to be taken into account under the principles in the case of R v Renzella. As things stand, as of today, that 208 days is not in my view in that category, although it might in the future become so.  I take the view that it is more appropriate and indeed is relevant, to take that period into account under the principle of totality.

28I therefore take into account that in addition to 236 days of presentence detention in respect only of the charge with which I am dealing, and which is available to be reckoned served against the sentence I impose, I should moderate the sentence to take into account that you will have in fact served more than 14 months in prison in combination for this and a variety of prior summary offences.

29Your domestic arrangements have also suffered as a result of your protracted imprisonment since your arrest on these matters.  I am told that you were at the time living in a house provided by the Director of Housing, but that during the time you have been incarcerated and unable to obtain bail, your former partner took over that house. Although you have fought that and tried to obtain protection of your right to return there, only last month your efforts to have it maintained as accommodation available to you were apparently lost.

30I am told that on release from prison you intend to reside in the short term with a former partner, who is the mother of your two eldest children. Alternatively, you could live with your sister with whom those two children are currently living.  I am told that your sister has in fact applied for guardianship or some other custody order in respect of them. Those are children I am told who are actually living with you and for whom you maintained a stable lifestyle while they were with you some years ago.

31I also take into account that since 30 June of this year, you have spent your time in custody in much more restricted conditions than normal and I am told that that has been in 23 hour lockdown at Port Phillip Prison in the Scarborough unit. I take into account that those conditions will inevitably have been more onerous for you than time on remand ought normally to be.  Further I saw last week, the signs of the very considerable stress that you have been under in the last few months and in particular, over the weeks approaching your trial.

32I do not overlook that you ultimately admitted to attempting to rob Mr Snowden despite heated denials both to the police and during last week's hearing, but I do accept that I saw the result of the stress you were under and although this is from my non-professional viewpoint, it seems to me that that stress was inevitably having a poor effect on your mental health.

33In the circumstances, that seems to me to confirm that the conditions in which you have been remanded since the end of June have been much more onerous than they would normally be and all of these circumstances call for some moderation of your sentence.

34Finally I am told that it is your hope after being released from prison and after spending some time finalising your affairs, to move to Queensland to get work and start afresh away from the associations that have led you into trouble in the past. I note that you would be leaving behind three children, none living with his or her own mother, but if the two who are under the care of your sister remain so, you can presumably remain in ongoing contact with them.

35In the circumstances, I am satisfied that the nature and seriousness of the offending taken together with your prior criminal history requires that no sentence other than imprisonment is appropriate.  However, I accept that the period of time you have so far been in prison is sufficient to fulfil sentencing principles, and I shall make an order which allows you to be released today.

36Andrew Brian Gill, on the charge of attempted robbery of Shane Snowden, you are convicted and sentenced to imprisonment which I am going to fix at 236 days, being the period of your pre-sentence detention in respect of this offence, and I declare that 236 days to be reckoned served.  As I say, that should mean that you will be released today.  That declaration of pre-sentence detention must be entered in the court records and it will deducted administratively.

37I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty to this charge but had been convicted of this charge by a jury, and of course that is an artificial situation as these often are, but I would have imposed a sentence of 11 months imprisonment.

38I am asked to make an order that will enable a further forensic sample to be taken from you.  I did not hear from your counsel as to that.  Do you want to seek instructions on that?

39MR PAGE:  He consents to that, Your Honour.

40HER HONOUR:  All right.  Well in light of that, I will make that order and it will have to be arranged that he has - that is the form of order where he will not still be in custody so he will attend ‑ ‑ ‑

41MS MacDOUGALL:  Yes, Your Honour.

42HER HONOUR: - - -to have that done.  Yes, you have got your hand up,
Mr Gill?

43OFFENDER:  Your Honour, I just gave a sample upon arrest and I have given a blood sample before, Your Honour.  They have been recorded.

44HER HONOUR:  All right.  If there was a sample taken ‑ ‑ ‑

45MR PAGE:  I will explain it to him.

46HER HONOUR: - - -on your arrest this time, then it ‑ ‑ ‑

47OFFENDER:  It was.

48HER HONOUR: - - -will be now automatically, that will be retained and used without a new sample having to be taken.  So Ms MacDougall, can you have that checked?

49MS MacDOUGALL:  Yes, Your Honour, my instructor had checked last week and was informed that there had been a sample in the system some years ago.

50HER HONOUR:  Yes, but some years ago is not the fresh one last year.

51MS MacDOUGALL:  Yes ‑ ‑ ‑

52HER HONOUR:  I was under the impression it was many years ago and that technology may have changed the pattern that might have been elicited.  But let me just check at the end of the record of interview whether that is ‑ ‑ ‑

53MR PAGE:  Your Honour, can I just briefly approach Mr Gill?

54HER HONOUR:  Yes.  You can take a seat, Mr Gill.  Mr Page?

55MR PAGE:  He indicates that there was - he recalls a swab being taken at the end of the ‑ ‑ ‑

56HER HONOUR:  The interview?  It does not appear unless I have overlooked it.

57MR PAGE:  Your Honour, he is happy for the order to be made out of an abundance of caution.

58HER HONOUR:  Sorry, I know what has happened.  I am looking at the wrong thing here.  Well it is always awkward and I might not have - if it has been taken, I do not have to sign an order because it automatically happens nowadays, does it not?

59MR PAGE:  Yes.

60MS MacDOUGALL:  That is correct, Your Honour.  The record ‑ ‑ ‑

61HER HONOUR:  As an indictable offence.

62MS MacDOUGALL:  But the record of interview indicates that fingerprints only were taken.  There is ‑ ‑ ‑

63OFFENDER:  No it says in the interview, it says it because I have read it.

64MR PAGE:  I will find it Your Honour.

65HER HONOUR:  Well perhaps if everybody can check that.  Does your - you have made an oral application for it today.  Have you got a draft of the order?

66MS MacDOUGALL:  Yes, Your Honour.

67HER HONOUR:  It only appears to refer to fingerprints, unless it was mentioned earlier.

68MS MacDOUGALL:  There is nothing in the record ‑ ‑ ‑

69OFFENDER:  I remember it is three pages to the end.

70MR PAGE:  Yes, it does, Your Honour.

71HER HONOUR:  Yes, would you just give me the page number?

72MR PAGE:  Page 48 to - 47, 48 - sorry ‑ ‑ ‑

73HER HONOUR:  Considerably earlier in the interview, is it?

74MR PAGE:  Yes.  Page 134 to 136 on the hand up.

75HER HONOUR:  Yes.  Record of interview, p.14, question - well around there ‑ ‑ ‑

76MR PAGE:  One hundred and two.

77HER HONOUR:  One hundred and two.  Yes, in those circumstances I will not be signing the order.

78MS MacDOUGALL:  I apologise, Your Honour.

79HER HONOUR:  I think it happens automatically now?

80MS MacDOUGALL:  Yes, that is correct.

81MR PAGE:  Yes.

82HER HONOUR:  That it gets retained.  All right.  As you would understand, Mr Gill, you were quite right, it is there in the interview.  You would understand that that means that it is analysed for your DNA and that gets placed on the state's database but it seems to me that if it has been there - there has been a previous DNA result on the database, this will update it.  All right, you can take a seat.  I just want to - I have obviously would normally not have imposed that precise number of days and indeed, I would have erred a little below it rather than above it or rather than that precise amount.  But in order to facilitate this happening, it seemed neater to impose that number of days, otherwise people will take ages to work out how many days in a month and all of that sort of thing and I did not want to delay the process.

83MR PAGE:  I am grateful for that, Your Honour.

84HER HONOUR:  That will be on transcript if it makes any difference to
Judge Taft or whoever else may deal with the other matter.  I do not know.  As I say, because this is done relatively quickly, I will revise those reasons but they will be available as soon as I practically can revise those reasons.

85MR PAGE:  I am grateful, Your Honour.

86HER HONOUR:  All right.

87MS MacDOUGALL:  As it pleases the court.

88HER HONOUR:  Mr Gill, I have covered everything now hopefully.  You will have to be taken back downstairs and to be processed. I will sign the order as soon as I can and that should see your release by the end of the day.

89OFFENDER:  Thank you, Your Honour.

90MR PAGE:  Thank you, Your Honour.

91HER HONOUR:  You can leave, Mr Gill.  I will just wait here and sign the order.  So 236, everybody is agreed on that?

92MR PAGE:  Yes, Your Honour.

93MS MacDOUGALL:  Yes, Your Honour.

94HER HONOUR:  Yes.  All right, can we adjourn please.

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