Director of Public Prosecutions v Glasby; Director of Public Prosecutions v Robinson
[2016] VCC 927
•1 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00658
CR-16-00496
Indictment No. C6161070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTOFER JAMES GLASBY |
| and |
| SHANE ROBINSON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 10 June 2016 | |
DATE OF SENTENCE: | 1 July 2016 | |
CASE MAY BE CITED AS: | DPP v Glasby; DPP v Robinson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 927 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – plea of guilty
Legislation Cited: Crimes Act 1958, s75A; Sentencing Act 1991
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342; Ryan v R [2001] HCA 21; Director of Public Prosecutions v John Candaza; Director of Public Prosecutions v Peter Koufomanolis; Director of Public Prosecutions v Andrew Mavros; Director of Public Prosecutions v Michael Nunez [2003] VSCA 91; Phillips v The Queen [2012] VSCA 140
Sentence: Each sentenced to a 2 year CCO with various conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A French | Solicitor for the Office of Public Prosecutions |
| For the Accused Glasby | Ms R Sleeth | Victorian Legal Aid |
| For the Accused Robinson | Mr E Cinat | Borchard & Moore |
HIS HONOUR:
1 Both you, Kristofer James Glasby, and you, Shane Robinson, have pleaded guilty that each of you, on 3 May 2013, robbed Jack Shi of certain property, namely confectionary, and that at the time, you, Kristofer James Glasby and another co-offender, Jayden Trommler, had with you offensive weapons, namely a baseball bat and a crowbar.
2 The offence of armed robbery is contrary to s.75A of the Crimes Act (1958) and carries a maximum penalty of 25 years’ imprisonment.
The circumstances of the offending:
3 Counsel for the prosecution tendered a document headed "Summary of Prosecution Opening", (“Exhibit 1”), which sets out the details of the subject offending. I was informed by both of your counsel that you do not dispute the contents of such document.
4 I will not repeat all of the details in that document, but refer to the following important matters:
(a) You, Kristofer James Glasby, who I shall refer to as "Glasby", are presently 22-years-old, having been born on 3 September 1993. At the time of the offending, you were 19-years-of-age;
(b) You, Shane Robinson, who I shall refer to as "Robinson", are presently 22-years-old, having been born on 10 May 1994. At the time of the offending, you were 18-years-of-age;
(c) On the evening of Friday 3 May 2013 you, Glasby, and you, Robinson, were at the house of the co-accused, Jayden Trommler, who I shall refer to as "Trommler";
(d) At that time, you, Glasby, and Trommler, made a plan to commit an armed robbery on a nearby milk bar and asked you, Robinson, to drive them to the milk bar;
(e) You, Robinson, drove both Trommler and Glasby and parked the car a short distance away from the Mansfield Food Mart store located at 157-159 Mansfield Street, Berwick ("the store").
(f) At approximately 9.05 pm, you, Glasby, and Trommler, entered the store, both wearing balaclavas, gloves and carrying large sports bags. The bag Trommler was carrying contained a baseball bat and the bag carried by you, Glasby, contained a crowbar. You, Robinson, stayed in the car.
Trommler approached the counter in the store armed with the baseball bat and started filling his sports bag with bags of lollies. A few seconds later, the 13-year-old son of the owner of the store, walked out into the counter area. Trommler told the boy to, "Put all the money in this bag", two times, and after making these demands, Trommler used the baseball bat to hit the cash register and then hit a computer screen, which fell to the ground. Trommler then repeated his demand that he put all the money into his sports bag. When such demands were being made by Trommler, you, Glasby, stood next to him. The boy opened the register when, the owner of the store and father of the boy, came from the back of the store and asked his son in Chinese, "What's happening?", to which his son replied in Chinese, "We’re being robbed". The owner picked up an empty cardboard box and threw it over the counter at Trommler and you, Glasby, telling you in English to, "Go away. Go away". Jian Shi then picked up the cash register scanner, after which Trommler and you, Glasby, ran out of the store.
(g) The robbery was captured on CCTV and shows Trommler and you, Glasby, entering the store at 9.05.44 pm and exiting at 9.06.19 pm;
(h) In December 2015, police received information through Crime Stoppers and that person identified Trommler and you, Glasby, and you, Robinson, as the offenders;
(i) After leaving a card at your premises, Glasby, you contacted the police on 4 January 2016 and voluntarily attended the Dandenong police station where you were placed under arrest. On 12 January 2016, you, Robinson, also voluntarily entered the Dandenong police station and were placed under arrest;
(j) During the course of your interview with the police, you, Glasby, stated, amongst other things:
· "Unfortunately my own memory is not the best. Obviously at that time I was struggling with an addiction, a drug addiction with Ice, which - I mean, pretty much any illicit drug you can think of"
· "At the time we were just looking for any way to get money so we could continue to use these illicit drugs"
· "At the time the person I was with had an idea to hold up a milk bar and get some money. I didn’t think it was a good idea but I obviously didn’t want my friend to go and do something that stupid by himself and at the time, being under the influence heavily, didn’t think I had any other choice but to accompany my friend". [The friend of course referred to is Trommler].
· "As soon as we got there I obviously immediately regretted it. Seeing the young boy behind the desk as well, immediately just felt terrible and I realised what an idiot I was at the time".
· "Once we got there, near the milk bar, we did sit there for quite a while, maybe ten minutes, and pondered if it was a good idea or not".
· There were three people involved.
· "About five minutes" of planning went into the offending.
· You, Glasby, cut holes in a beanie and put it over your face.
· In response to the question, "Did you have any weapons on you?”, you said there was a crowbar in the bag which was already there when you took the bag and you did not have an intention to use it.
· "The other male"… [Trommler]… that was with me went to the front counter to take care of what we were there for and I, I guess in a way, just was backup, I walked around the store. I believe I may have picked up a few items, food or drink or something like that. That’s pretty much all I did and then once I realised that the situation was going to escalate, I went to the – back to the front of the store and said, 'Let’s go, this is not a good idea. Let’s go'".
· "I knew that it was gonna come back to haunt me. Obviously no crime can go unpunished and obviously - but, yeah, I just want to get my story across and just, yeah, let you guys know that I do know that it was stupid".
· You described your offending behaviour as "immature" and furthermore, you stated:
"I'm a completely different person now. I've got a new job and Iiving somewhere else and I've sort of distanced myself from all of the other people that sort of brought me back down in the day and yeah, I just trying to start my new life and turn it around. I think I am doing a really good job".
(k) During your interview, you, Robinson, stated, amongst other things, the following:
· Trommler and Glasby asked you if you, "Could drive down to the milk bar just for, like, no apparent reason at all".
· "…Jayden and Kris got out of the car and went to the milk bar. I did not know why they went to the milk bar but as soon as I saw their bags and baseball bat I knew something was up, so I literally just waited around the corner and – for them to come back. I saw them run back then stalled the car and – and then drove off. They opened their bag when they got back and it was just lollies. And, like, I asked them what they did and they said 'We just robbed a place'. I said 'Are you – are you kidding me?' like, 'Why did you drag me into that position?'".
· You saw Trommler and Glasby get into the car with bags which had a baseball bat hanging out of it. "The bags were the giveaway for me and like baseball bats sticking out of it. I am like, who the hell goes to a milk bar with bags and a baseball bat?"
· In response to a question from police about why you did not ask Trommler and Glasby what was going on, you said:
"I’m just – I’m just a quiet person. I don’t really ask much questions, I just kind of go along with anything. Like, I didn’t think my best friend", Trommler, "would put me – put me in that position".
· After your interview, you made a statement in which you stated in part:
"I am really sorry for what I have done and I feel for the family especially the young boy at the milk bar centre".
5 Counsel for the prosecution tendered a DVD of the CCTV recording of the robbery, which was played during the plea, (“Exhibit 2”). The recording consisted of two camera angles clearly revealing the robbery and showing both you, Glasby, and Trommler, entering into the store and, in particular, Trommler brandishing the baseball bat when the young boy is in the store.
6 Counsel for the prosecution indicated that the case against you, Glasby, and Trommler, was put on the basis that you were parties to a joint criminal enterprise, namely the armed robbery of the Mansfield Food Mart shop. In relation to you, Robinson, it is alleged that you are liable as an aider and abetter of such crime on the basis that you drove Glasby and Trommler to a location which allowed them to carry out the armed robbery. I was also informed that the co-accused, Trommler, who was born on 20 December 1995, was 17-years-old at the time of the offending and, consequently, his matter is proceeding before the Children’s Court.
7 No Victim Impact Statements were relied on by the prosecution.
8 Counsel for the prosecution accepted that each of your pleas in relation to the offending can be characterised as very early pleas of guilty.
Prior criminal record:
9 Counsel for the prosecution informed me that you, Glasby, had been found guilty of two previous driving offences on 17 December 2012, and had received an adjourned undertaking without any conviction being recorded. You, Robinson, have no prior criminal history.
The personal circumstances of the accused Glasby
10 Kristofer James Glasby, your counsel tendered the following documents:
(a) Reference from Emma Glasby, your sister, dated 12 June 2016, (“Exhibit A”);
(b) Reference from Ms Amy Butcher dated 11 June 2016 (“Exhibit B”).
11 Counsel also made reference to a document headed, "Plea submissions on behalf of the accused". This document was tendered as an exhibit on the plea, (“Exhibit C”).
12 Your counsel also called your father, Paul Glasby, to give evidence on your behalf. He described how he had been employed by Pedders Suspension since 1986 and is now the product development group manager. He also described marrying your mother in 1992 and there are three children from that marriage, of whom you are the oldest. You have a sister, Emma, who was in Court at the plea, and a younger brother, Jordan, who is 15-years-old.
13 Your father gave evidence that he commenced work for Pedders in Brisbane and then, after a few months, he was offered a position in the head office in Melbourne, which he accepted. The family home has been in Berwick since then.
14 He described how you attended the local primary school and described yourself at that level, as doing okay, "but not overly well". You went on to complete Year 12, but struggled with focus and concentration, although there was no testing for any learning difficulties.
15 In particular, your father described how he and your mother divorced about four years ago, causing a split in the family, with Emma and Jordan going with your mother and, you, being 18 at the time, choosing to stay with your father. At that time you had just finished Year 12.
16 Your father described it being a difficult time for both of you, having your siblings move away. Furthermore, your father noted he probably did not give you as much support as you deserved, but he did what he could in circumstances where he was working about 50 hours a week and travelling overseas four or five times a year.
17 Your father noted that you began to spend more time away from home and, in particular, spending some time with Jayden Trommler, which he was not particularly happy about. Over this time, your father described you as withdrawn, and there was not much communication between you, although he had no idea that you had commenced to use drugs. Your father gave evidence that the first he knew of your involvement with drugs was when the police came to his door in January this year.
18 Your father also described that after completing Year 12 you ended up getting a fulltime casual position with an engineering company and worked there for about ten months while another staff member was on maternity leave. After ceasing work there, your father described you as being "lost" between the ages of 19 and 20. During this time you received no Centrelink benefits because you were living with your father and relying on his income.
19 In particular, your father noted that you started playing basketball when you were seven, and have played most of your life ever since and have what your father described as a "passion" for the game. He also described how you now play weekly at Berwick Basketball Club and that your relationship with your mother is now good, she having assisted you in paying off debts and supporting you in the best way she can. In this respect, the other children, Emma and Jordan, although still living with your mother, are seen by your father every second weekend.
20 Your father also noted that since commencing work at Telstra about nine to ten months ago your demeanour has changed completely and you have loved working with the new technology and interacting with customers. Presently, you work casually about 30 hours a week over four days and have had good performance reviews. There is a strong possibility for advancement to fulltime work.
21 Your father gave evidence, in particular, that:
(a) You no longer see Jayden Trommler;
(b) You have not been on any Mental Health Plan, and that your father has spoken to you about drug use and debt, and generally believes that you are not using any type of drug;
(c) You were in a relationship for about a year, but not now;
(d) You seem much happier and more content with goals, and things you want to achieve, and for the first time since reaching adulthood, you appear to have a focus and a purpose.
22 Your father gave evidence he would be happy for you to continue to live with him in the future and noted that you wished to continue working with Telstra and gain some advancement. Furthermore, you would like to develop your passion for basketball through coaching and assisting in other ways.
23 Under cross-examination, your father informed the court that you had told him that you deeply regretted your actions in relation to the armed robbery, but was relieved that the offending had been brought to a head because you wanted to deal with it, face it, and put it behind you.
24 Partly based on the various documents which have been tendered, and further submissions made by your counsel, I note the following:
(a) You described your childhood as very happy, and one in which you felt "loved";
(b) You described yourself as the "class clown" at school and was disruptive, and had some concentration issues, but have never been tested for any type of condition. On passing Year 12, you described yourself as lacking any goals or future plans;
(c) You described that you did not see the divorce between your parents "coming" and you found the removal of your siblings from the household very disruptive. At, or about that time you began smoking cannabis and later moved on to party drugs. Furthermore, you commenced to use methylamphetamine, or ice, and that habit, which was costing about $150 a day, lasted for 12 months. You have instructed your counsel that you had ceased using that drug within two to three months after the subject offending;
(d) You met a young woman named Tory, at the end of 2013. The shock of committing the armed robbery, and meeting Tory, motivated you to cease drug use without any particular professional assistance. During this period of time you experienced significant withdrawal symptoms and you were assisted by Tory;
(e) You moved in with Tory two months after meeting her but, unfortunately, Tory moved overseas to Hawaii with her family, causing a break-up in early 2015. You were devastated and did not work for a while and suffered anxiety and depression, but these issues have resolved upon your commencement of your work at Telstra, where you receive a base salary, plus commission. You describe yourself as a sales consultant/account manager and you hope to increase your employment from four days a week to five days a week, and aspire to move into management within the organisation. You describe yourself as wanting to travel and have your own place to live, and that the "sky is the limit" if you do not go to jail.
25 Your counsel described you as determined and ambitious and someone who believes the best is yet to come. You contribute to charity, $25 a month to Make-A-Wish and $50 a month to Habitat for Humanity. You instruct your counsel that you have not used any drugs for 18 months, and although you had a few relapses in the year prior to that, but have been largely off drugs since 20-years-of-age, and are confident you will never go back onto drugs.
26 I refer to the reference from your sister, who describes having an extremely close relationship with you over the years. Your sister describes you as a "respectful young man" who would do anything for your friends and family. She confirms that, on the divorce of your parents, you started to "act out", making wrong choices, both with the use of drugs and the friends with whom you mixed. She describes that you are well aware of the grief that you would have caused for the young boy, the subject of the armed robbery, and have suffered some degree of depression and anxiety as a result of your actions.
27 In particular, she describes how she has observed you over the last three years mature and develop, and how hard you have worked to maintain your current job at Telstra, where you thrive, and which you enjoy immensely. I also refer to the reference from Ms Amy Butcher. She describes herself as the assistant store manager at Telstra and being your direct manager for the last three months, although she has known you since you first joined Telstra in September 2015. On becoming aware of the charge that you are confronted with, she described your actions as an uncharacteristic aberration and one which you sincerely regret.
28 She describes you as working tirelessly, often staying on at work long after the shift has ended, to ensure that all your duties are completed, as well as aiding others in the team with their duty. You are regularly nominated by your peers for team member of the month. In particular, she states:
"While I have only known Kristofer a short period of time, I know him to be a dedicated and driven young man who can achieve anything when he sets his mind to it. It is for these reasons that I have put him forward for a promotion with Telstra to a fulltime basis consultant, and will continue to train him to become an assistant store leader. Kristofer is an optimistic young individual with a bright future ahead of him and I wish him nothing but the best in his endeavour to create a career and better life for himself".
Your counsel's plea in mitigation
29 Your counsel submitted the following matters are relevant in mitigation:
(a) Your plea of guilty, which was at the earliest opportunity, and your cooperation after making such plea. She submits that your plea shows a willingness to facilitate the course of justice and saved the community the time, cost and expense of a trial;
(b) You have expressed remorse in relation to such offending and, in particular, have been distressed about the young boy being in the shop at the time of the armed robbery;
(c) At the time of the offending, you were aged 18, and must be viewed as a youthful offender. In this respect, reference was made to the well-known cases of R v Mills [1998] 4 VR 235 and Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43. Both those cases emphasise that, in relation to offending by a young offender, particularly in relation to first offences, rehabilitation of the offender is of paramount importance;
(d) That you have no prior convictions and that your only court appearances involve two traffic offences, for which you were placed on a bond;
e) Given that the offending occurred in May 2013, there has been an adequate period to demonstrate your rehabilitation over the period of time since then. In this respect, you are in paid employment, which you enjoy, you have a better relationship with your mother and father, and have an ongoing, good relationship with your siblings. You have ceased using drugs and, in particular, using ice. In such circumstances, your prospects of rehabilitation are submitted to be "good".
30 In relation to the actual offending, your counsel submitted that although such offending is serious, the offending was not "premeditated" for any length of time, was not prolonged, lasting only a period of 35 seconds, and motivated, on your part, for the need to pay for an "ice addiction". Furthermore, it was submitted that you would not have been aware that a young boy was working at the milk bar, which was randomly chosen to rob.
31 Your counsel also referred to the record of interview completed by Jayden Trommler, wherein, although not naming any other party, he did accept responsibility for the idea of committing the armed robbery. Furthermore, Trommler apparently stated that he gave directions to the driver of the vehicle and that the co-accused, being you, were there to "back up their mate". Your counsel accepts that you were a willing participant, being a drug user at the time, and the purpose of the robbery was to obtain money for your drug habit.
32 Given the nature of your offending, your counsel accepts that the principles of general and specific deterrence, just and proportional punishment, and denunciation, all have application. She submitted that all of the relevant objectives of any sentence could be met through the imposition of a community correction order and, in this respect, reference was made to the well-known decision of Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342.
The personal circumstances of the accused Robinson
33 Shane Robinson, your counsel referred to a document headed, "Submissions for the second defendant Shane Robinson", and such was tendered as an exhibit, (“Exhibit Z”).
34 Partly based on that document, and further submissions made by your counsel, I note the following:
(a) Although your counsel submitted there that you were 18-years-and-seven-days at the time of the offending, it would appear that, through a simple miscalculation, you were seven days short of your 19th birthday at the time of the offending;
(b) You are presently employed fulltime by Australia Post. You originally commenced employment with Australia Post about three years ago, after the date of the offending, and was originally employed part-time, and about six months ago, accepted a fulltime position with Australia Post as a postal worker. Your counsel submitted that, on your instructions, it is a job which you thoroughly enjoy and you hope to "climb the ranks" of that organisation. Reference was made to your record of interview, where you described the circumstances of such job as:
"I love my job, it’s great";
(c) Your counsel also informed the court that, about two years ago you were able to purchase a house, having been able to save $20,000 as a deposit towards the purchase price of such property;
(d) During this period of time you were living at home with your parents rent free, which permitted you to be able to save the money. For a short while you lived in the new property, but have since moved back home and rented out the house to a tenant. Furthermore, you are now saving for a second home and ultimately hope to build a property portfolio;
(e) It was submitted, on your behalf, that you have strong family support and have a good relationship with your parents, who were in court, and with whom you presently live.
Your Counsel’s plea in mitigation
35 Your counsel submitted the following matters are relevant in mitigation:
(a) Your plea of guilty, which was at the committal mention stage and has been accepted by the prosecution to be at the earliest opportunity;
(b) Your cooperation with the police generally and, more particularly, during the course of your record of interview, admitting the extent of your involvement. In this way, you have always demonstrated a willingness to facilitate the course of justice and save the community the cost and expense of a trial;
(c) You have demonstrated genuine remorse, as demonstrated by some of your answers in your record of interview and, indeed, the statement you made to police;
(d) You have no criminal record whatsoever, and have not come to the notice of the police since this offending;
(e) Over the three years since this offending, you have demonstrated that you have become a responsible member of the community, obtaining a job which you enjoyed very much, with ambition to rise up through the Australia Post organisation. Your maturity has been reflected in your ability to save money to purchase one property, with the prospect of buying yet another property;
(f) You have strong family support, which has aided you in your rehabilitation since the offending;
(g) At the time of the offending you were a youthful offender. In this respect, your counsel also made reference to the well-known cases of R v Mills op cit and Azzopardi v R; Baltatzis v R; Gabriel v R op cit. Your counsel also emphasised that, in relation to offending by a young offender, rehabilitation of the offender is of paramount importance;
(h) Reference was made to the High Court decision of Ryan v R [2001] HCA 21 where in Callinan J stated:
"It is well settled that whilst bad character will not operate to increase a sentence, good character may operate to reduce the sentence which the facts of the crime would otherwise attract. In some cases good character has even been held to be so significant a factor as to require the imposition of a non-custodial penalty in lieu of a term of imprisonment. In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused".
Your counsel submitted that the offending was an isolated incident and the Court should view you as a person possessing good character and take into account in determining an appropriate disposition. You no longer mix with any of the co-accused.
36 Ultimately, your counsel submitted that given all the circumstances the appropriate principles relevant to the sentencing could be accommodated by a non-custodial sentence. In particular, your counsel submitted that your degree of culpability or criminality was lower than that of your co-accused, Glasby. In this sense, it was submitted that even on the prosecution case you were liable as an aider and abetter of the crime of armed robbery, rather than being a party to the joint criminal enterprise involving your co-accused, Glasby and Trommler.
37 Furthermore, your counsel submitted that, in all the circumstances, a conviction should not be recorded, given your character and past history and the impact of such a conviction on your employment and economic prospects.
The response of the prosecution:
38 Counsel for the prosecution responded to the submissions on the part of your respective counsel and noted that the subject offence is a serious offence, which involved the son of the owner of the milk bar being confronted by two people, both wearing balaclavas and one brandishing a baseball bat.
39 Counsel for the prosecution also submitted, ordinarily, such offending would attract an immediate term of imprisonment, but in the circumstances of this matter, it would be within range for you to be both convicted of the offence and sentenced to a community correction order, with appropriate conditions. In this respect, counsel for the prosecution accepted:
(a) That you are both youthful offenders and the principles enunciated in R v Mills op cit and Azzopardi v R; Baltatzis v R; Gabriel v R op cit are applicable;
(b) Neither of you have any prior criminal history or, indeed, have come to the attention of the police since this subject offending;
(c) You were both cooperative with police and frank in your responses.
40 Counsel for the prosecution also noted that there is parity "in many respects" in relation to each of your roles, although there was differentiation in some respects. In this sense, the overall sentences should not be too dissimilar and, also, in relation to you, Robinson, it was submitted that, in the case of the serious offence of armed robbery, the exercise of the discretion not to record a conviction can only be in "rare and exceptional circumstances". Reference was made to the decision of the Director of Public Prosecutions v John Candaza; Director of Public Prosecutions v Peter Koufomanolis; Director of Public Prosecutions v Andrew Mavros; Director of Public Prosecutions v Michael Nunez [2003] VSCA 91.
41 In response to these further submissions, your counsel, Glasby, submitted that there should be parity between your disposition and that of Robinson. She highlighted to the Court that the statement of Robinson to the police was of little utility as both you, Glasby, and Trommler, had already made admissions. Further, she submitted that you, Robinson, tried to minimise your involvement. In particular, reference was made to the assertion by Glasby that when the car reached the milk bar, both Glasby and Trommler were in the car for about ten minutes before exiting the car to start the armed robbery.
During that time, there was discussion as to whether the robbery would occur and it was submitted that you, Robinson, must have been privy to such conversation. Ultimately, your counsel, Glasby, submitted there should be no disparity in the sentences but if, indeed, the court was disposed to not record a conviction in relation to Robinson, a similar attitude should be taken to you.
42 Your counsel, Robinson, submitted that the circumstances of this matter were rare and exceptional, given your peripheral involvement in the crime, your age at the time of the crime, your good character both before and after the crime, and the extent of your rehabilitation.
Conclusion
43 The offence of armed robbery is a particularly serious offence, as is made manifest by the maximum penalty of 25 years’ imprisonment. Although the robbery only extended over a relatively short period, 35 seconds, and resulted in the theft of approximately $300 of sweets, the CCTV footage makes clear the frightening circumstances of such robbery on, what can only be referred to, as a soft target. You, Glasby, and your co-accused, Trommler, were both wearing balaclavas, had bags with you and, in particular, Trommler was brandishing a baseball bat to hit the cash register and computer screen in the presence of the 13-year-old son of the owner of the store.
44 I do accept that any planning in relation to the armed robbery was not sophisticated, and had only occurred a short time prior, when discussions were held between you, Glasby, and Trommler. However, both you and Trommler had the wherewithal to have balaclavas to cover your face, take bags for your expected bounty and, in relation to Trommler, being prepared to brandish the baseball bat.
45 Although it is clear, I believe, that you knew your bag contained a crowbar, I accept that the crowbar had always been in your bag and there was no particular intention to use it on that day and, of course, it was not removed from the bag during the course of the robbery.
46 I accept that Trommler was the precipitator of the robbery and was the main actor during the course of the robbery. However, as you make plain in your record of interview, you went along with this, at least up until the time that you became concerned about the young boy being in the store, at which time you urged Trommler to leave. I also accept that at, and around the time of the robbery, you, Glasby, were struggling with an ice addiction and I consider that part of the reason you decided to accompany Trommler was to obtain money to cater for your need for that drug.
47 Overall, although I accept that Trommler was the main instigator, it must be borne in mind that, you, Glasby, were privy and part of the initial planning of the robbery at Trommler’s house, to the extent there was any type of planning, and saw fit to enter the store with a balaclava and carrying a bag, which did contain a crowbar, and be privy to the activities undertaken by Trommler. In particular, brandishing the baseball bat on the counter.
48 In respect to you, Robinson, I accept that you had no role in the planning of the robbery. What would appear to be beyond doubt is that, when both Glasby and Trommler returned to the vehicle you became totally aware that a robbery had occurred, and that you drove Glasby and Trommler back to Trommler’s premises.
49 Although, I accept, consistent with your comments in your record of interview, that you were asked whether you could drive Trommler and Glasby to the milk bar and through that journey knew "something was up", having seen the bags and the baseball bat, you had no particular knowledge that an armed robbery was to be undertaken. Of course, you did not enter the shop at the time of the robbery.
50 Both counsel for the prosecution and Glasby, submitted that there was a degree of parity between you and Glasby, given the assertion by Glasby that when the vehicle had reached the store both Trommler and Glasby remained in the car for what Glasby thought to be about ten minutes, discussing whether the robbery would occur. It is suggested that you must have been privy to such conversation.
51 I am not satisfied beyond reasonable doubt that such would be the case, bearing in mind that Glasby, in his record of interview, makes clear that because of his drug addiction his "memory is not the best" in relation to the night of offending. Furthermore, I refer to questions 78 through to 85 of the Record of Interview completed by Robinson, which read:
Q 78: “Yep. So you - you obviously agreed to drive them. You’ve gone and parked it. What was he saying to you the whole time? What was he communicating to you?'
A: We just had music on.
Q 79: Yep?
A: That's about it.
Q 80: Do you remember what was - what tunes you were rocking out to?
A: Probably one of… something like that.
Q 81: Okay. And how did he tell you where to park the car or anything like that?'
A: Yeah. He told me to park it on, like, the adjacent, towards the milk bar.
Q 82: Yep?---
A: Just like in that little street there.
Q 83: Yep. Did he say why he wanted to park there?---
A: Nup. But then- that's when I realised when they got out of the car with the bag, I'm like, 'something's up here'’.
Q 84: So that's - they - they've – he’s told you to park there and they've got out with the bags and…?---
A: Yep.
Q 85: then you’ve realised the whole…?---
A: It was suspicious when they got in with the bags first, but then when they got out with them, I’m like – I thought they were just their bags and he was just going to take them home after he’s done or something”.
52 I do accept that, consistent with the submissions of your respective counsel, the following matters should be taken into account in mitigation of any sentence:
(a)Each of you pleaded guilty to the subject offence and such plea has been accepted by counsel for the prosecution to be at the earliest possible time. Such a plea has, at least, the utilitarian value in saving the time and cost of a trial. See Phillips v The Queen [2012] VSCA 140 at paragraph [36]). However, it is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from the plea of guilty. See Phillips v The Queen op cit at paragraph [96]). In the circumstances of this matter, I do consider the early pleas of guilty and, more particularly, the co-operation shown by each of you when dealing with the relevant authorities, and your expressed remorse about your activities, does permit me to infer that you have genuine remorse for your offending;
(b)Neither of you have any relevant criminal record and, indeed, since the subject offending, would appear to have not come under the notice of the authorities. The delay between the occurrence of the offending and you being brought before the Court (about three years) is, of course, due to no fault on the part of the relevant authorities. Your apprehension came about by a report to Crime Stoppers in December 2015. However, such delay can be the basis of a demonstration of how you have each gone about your rehabilitation. In this sense, I accept that both you, Glasby, and you, Robinson, have become responsible members in the community, having obtained employment which you both enjoy immensely, and enjoying established family links around you;
(c)In particular you, Glasby, to your credit, appear to have overcome your addiction to ice and, consistent with the comments of your father and sister, seem to have matured greatly and wish to get on with your life;
(d)You, Robinson, seemingly have always been a largely responsible person, with no drug history or history of antisocial behaviour. Again, your activities since the offending have demonstrated your growing maturity and well-directed ambition;
(e)Both of you were youthful offenders at the time of the occurrence of the robbery. I refer to Azzopardi v R; Baltatzis v R; Gabriel v R (op cit), in particular, paragraphs [34]-[36], where Redlich JA stated:
"There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. First, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK and GAS:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in
R v Lam: - 24A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community".
I also refer to paragraph [44] of the same judgment wherein Redlich JA stated:
"The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished".
53 I have been urged by your respective counsel to sentence you to a community correction order rather than an immediate term of imprisonment. Counsel for the prosecution said such a course of action would be within the range of appropriate sentences.
54 I refer to the guideline judgment given by the Court of Appeal in Boulton v R; Clements v R; Fitzgerald v R (op cit), pertaining to the operation of community correction orders, which have been available in Victorian courts since January 2012.
55 As that court stated, the community correction order is a radical new sentencing option, with the potential to reform sentencing in this State. Although a non-custodial order, such order has mandatory conditions laid down by legislature, and the sentencing court can attach to a community correction order a range of conditions which are variously "coercive, prohibitive, intrusive and rehabilitative". As pointed out by the Court of Appeal, a community correction order is a "flexible sentencing option", enabling punitive and rehabilitative purposes to be served simultaneously.
56 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991, which respectively states:
"(4)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
(4C)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss.48F, 48G, 48H, 48I and 48J are attached".
57 As the Court of Appeal has stated, s5(4C) of the Sentencing Act 1991, prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which the sentence is to be imposed on the offender; and
(b) where those purposes can be achieved by a community correction order to which one or more of the specified (onerous) conditions is attached.
58 I also refer to Appendix 1 of the Court of Appeal judgment which is headed "Community Correction Orders, Guidelines for Sentencing Courts". Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and the moral culpability of the offender. I am then called upon to consider whether:
(a)The crime, as so assessed, is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)A community correction order either alone, or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
59 The Court directed that each of you be assessed by the appropriate correctional officer as to the suitability for each of you to be sentenced to a community correction order. Both of you were assessed on 15 June 2016.
60 In regard to you, Glasby, you were assessed as suitable for a community correction order. It was recommended that the following further conditions should be added to the core condition: - community work, assessment and treatment, including testing for drug use, assessment and treatment involving mental health, supervision and residence restriction.
61 Community Correctional Services assessed your general risk of re-offending as being "low", according to the Level of Service Risk Assessment Tool.
62 In relation to you, Robinson, you were also assessed as suitable for a community correction order. Community Correctional Services also assessed your general risk of reoffending as being “low” according to the Level of Service Risk Assessment Tool. It was recommended that the following further conditions should be added to the core condition – community work and a residence restriction.
63 As I have already recorded, I consider the offence of armed robbery to be a serious offence and the sentencing principles of denunciation, general and specific deterrence and protection of the community are important considerations.
64 I have come to the view, based on the material before me and, in particular, the advantage of having seen what you have achieved over the last three years that the prospects for rehabilitation in respect of both of you are "good".
65 Taking all these matters into account, I do not intend to propose an immediate sentence of imprisonment but, rather, sentence each of you to a community correction order with various conditions.
66 Furthermore, I have formed the view that, in relation to, you, Robinson, there are "rare and exceptional circumstances", whereby I do not intend to convict you of the offence of armed robbery. In this respect, I consider that there is a disparity between your criminality and that of your co-offender, Glasby. In this respect, I note the following:
(a)In distinction to you, Glasby had been involved in the planning of the robbery, and the execution of robbery, with particular reference to entering the store wearing the balaclava and assisting Trommler;
(b)Again, in distinction to you, Glasby had a particular motive for performing the armed robbery – to obtain the wherewithal to support his drug habit.
67 Against this, consistent with my earlier comments, I am satisfied that your role did not involve any of the planning of the robbery, only a suspicion that something was remiss as you drove to the milk bar, no involvement with the actual execution of the armed robbery, save for driving Glasby and Trommler back to Trommler’s house after the occurrence of the robbery.
68 In all the circumstances, and bearing in mind s.8 of the Sentencing Act 1991, I consider that the recording of a conviction has real potential to impact on your economic and social well-being and/or employment prospects. I also take into account your past character and, indeed, your demonstrated activities over three years since the offending.
69 Please be upstanding:
(a)In relation to Charge 1, you, Kristofer James Glasby, are convicted and sentenced to a community correction order for a period of two years. You must attend the Dandenong Community Correctional Services within two clear working days. In addition to the mandatory terms, there will be the following conditions:
(i)Pursuant to s.48C of the Sentencing Act 1991, you are to perform unpaid community work for a period of 150 hours over the course of the Order;
(ii)Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse or dependency;
(iii)Pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment treatment that may include psychological, neuropsychological or psychiatric treatment in a hospital or residential facility;
(iv)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary of the Department of Justice for the duration of the Order.
(b)In relation to Charge 1, you Shane Robinson, having pleaded guilty to such offence, are sentenced to a community correction order, without conviction, for a period of two years. You must attend the Dandenong Community Correctional Services within two clear working days. In addition to the mandatory terms, there will be the following conditions:
(i)Pursuant to s.48C of the Sentencing Act 1991, you are to perform 150 hours unpaid community work over the duration of such Order;
(ii)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary of the Department of Justice for the duration of the Order.
(c)I further order that, pursuant to s.464ZF of the Crimes Act 1958, that each of you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the Act, until a sample of sufficient standard is obtained for placement on the database. I must inform you that, if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted.
(d)Pursuant to s.6AAA of the Sentencing Act 1991, I declare that, in respect to you, Glasby, save for your plea of guilty, I would have convicted you and sentenced you to a period of eighteen months’ imprisonment. Save for your plea of guilty, Robinson, I would have convicted you and sentenced you to a period of imprisonment of twelve months.
Thank you.Anything to say counsel?
MR FOSTER: No, Your Honour.
HIS HONOUR: Perhaps I should make clear that as I have recorded, I have not made it a condition in the community corrections order of a residence condition. That was something I raised with the Community Corrections people and to the extent, they say that there - is more reflection of what I was thinking at the time. On further reflection, I do not think that is appropriate in all the circumstances.
70 MR BAILIN: As Your Honour pleases.
71 MR CINAR: As Your Honour pleases.
72 HIS HONOUR: Can I just speak to you two? Stand up again please. What you have to understand and I think you do understand, that what you committed was a very, very serious offence. It could have worked out frightfully worse. If the baseball bat had hit that boy and damage had been done to him, it would not be if, it would be how long you would go to prison for and I can assure you, prison is a very frightening place for some.
73 You have been sentenced to a community corrections order. What you have to understand is this is like a sentence, any other sentence of this Court. If you do not comply with this community corrections order in any form or way, you will be brought back to me in what is called a breach of the order.
74 If there is a breach, I have got complete power to do what I like at that stage and you could well be in the prison van off to prison if there is not compliance. You have both been given a real chance. The Court have given you some indulgence. You must understand this offence was very, very serious. Your youth and I think your rehabilitation since this offending has saved you both from going to prison, but it is really up to you now. You must continue on your way in the same way as you have shown in the last few years.
75 Treat this sentence just like it would be any other serious sentence. You must comply with it. You must communicate and keep in contact with the Secretary. As I say, if you decide that you are not going to start doing the community work or something like that, you will be back before me before you say Jack Robinson and I will take a very, very dim view of that, I can assure you.
76 Do you understand?
77 OFFENDER ROBINSON: Yes.
78 OFFENDER GLASBY: Yes.
79 HIS HONOUR: Yes, very well. Adjourn the court.
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