Director of Public Prosecutions v Glouftis, Christopher and McDonald, Mark
[2012] VCC 1968
•8 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00187
CR-12-00188
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER GLOUFTIS MARK McDONALD |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 October, 1 November 2012 | |
DATE OF SENTENCE: | 8 November 2012 | |
CASE MAY BE CITED AS: | DPP v Glouftis, Christopher and McDonald, Mark | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1968 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – armed robbery – parity – extensive criminal records – history of drug abuse – offence committed whilst on parole and bail – poor prospects for rehabilitation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G.A. Coghlan | OPP |
| For the Accused Glouftis For the Accused McDonald | Mr P.V. Guggenheimer Mr M.E. Regan | Chris McLennan & Co. Victoria Legal Aid |
HER HONOUR:
1 Christopher Glouftis and Mark McDonald, you have pleaded guilty to one charge of armed robbery arising out of events that occurred on 29 September last year.
2 On that day each of you went to a property at unit 4, 9 Alwyn Court in Braybrook. The property was apparently occupied by a person known to supply drugs and each of you, it would appear, had gone there in order to obtain drugs yourself.
3 Another man by the name of Mukesh Shrestha had also gone to the property on that day and was there at about the same time as you were. According to Mr Shrestra he arrived but did not go into the property because he was told by somebody else that the supplier was not home. Mr Shrestra had a friend with him and the friend went into the property. The two of you then came out, accosted him and dragged him inside the unit telling him that you needed to talk to him. He said both of you appeared to be quite angry with him.
4 Mr Shrestra was dragged into the lounge room and the front door was closed. In addition to the two of you there were a number of other people in the unit at the time. The two of you demanded his money, his gold chain and his wallet. He was not in fact wearing a gold chain. Each of you began to punch him with your fists to his head. He believed, although the evidence does not enable me to make any affirmative finding to that effect, that one of you had keys between your fingers; that is relevant only in terms of the description of the force with which he says the blows were struck and the pain that they caused.
5 After a number of blows to the head each of you armed yourself with a sharp weapon. You, Mr Glouftis, had a knife about eight inches long. Mr Shrestra described it as similar to a steak knife, but when one looks at the photographs of the knife it looks more to be of a kitchen or chopping knife. You, Mr McDonald, had a screwdriver with what looked like a sharpened point on it. You, Mr Glouftis, grabbed Mr Shrestra by the hair and held a knife to his throat while Mr McDonald punched him again to the head. They were hard punches and a number of them.
6 The two of you then searched Mr Shrestra's pockets while holding the weapons close to him. You stole his wallet, his mobile phone and his watch. You, Mr McDonald, were seen to put the watch on to your wrist and it was later found there by the police when you were arrested.
7 You continued to assault Mr Shrestra punching and kicking him to the body and then pushing him into the toilet and shutting the door. Although the door was not locked it was closed and he was told he was not able to come out. He was not able to get out. He was kept there for about 10 minutes before you, Mr McDonald, opened the door, told him he could come out but was not to say anything. By the time he emerged from the toilet the only other people left in the flat were the two of you. The others had all left.
8 Shortly after that the police attended at the flat. They had come in response to a 000 call. They made it clear that they had been called because they were told there was some form of altercation and they were checking on the welfare of all people present. They did not speak to any of the three of you separately and Mr Shrestra felt unable to tell the police in your presence what had happened to him.
9 The police left, but shortly thereafter returned and took Mr Shrestra out of the house. Once they took him outside and he was removed from your presence he immediately complained that he had been assaulted, that his property had been stolen from him, that he had been threatened with weapons and that he had been locked in the toilet. Photographs were taken of him shortly after that that showed swelling to his right cheek, a cut above his right eye and swelling to his lips as well as red marks in the area of his face.
10 You were arrested and taken back to the Footscray Police Station. You, Mr McDonald, were seen to be wearing the watch. You, Mr Glouftis, when in the back of the divisional van, were seen to be trying to get rid of some substance and you were found in possession of two small deal bags which contained ketamine and cannabis.
11 You were each interviewed. When you were interviewed, Mr McDonald, you admitted being present at the flat with Glouftis and said you had gone there to buy heroin. You said that Mr Shrestra was already there when you arrived, that you did not know him and that you saw no injuries on him.
12 You, Mr Glouftis, when interviewed also admitted to being present at the flat, said you had gone there with McDonald and you too had gone there to buy drugs. You said that Mr Shrestra was already knocking at the door when you arrived and the three of you walked in together. You denied having a knife, assaulting Mr Shrestra and you too denied seeing any injuries on him. You admitted possession of the substances and you said that one you believed to be cannabis, the other you believed to be amphetamine. Testing has in fact shown it to be ketamine, not amphetamine. You admitted to using drugs at the house. Each of you was obviously impaired by drugs at the time of arrest and at the time of initial interview.
13 The police, when they searched the unit, saw, and photographed, the knife and the sharpened screwdriver which Mr Shrestra had said were the weapons used on him.
14 As a result of these events you were each charged with one charge of armed robbery, one of causing injury and one of false imprisonment and you, Mr Glouftis, were charged with possession of the drugs.
15 The matter resolved at the commencement of your trial with the prosecution accepting a plea of guilty to one charge of armed robbery, but on the basis of the circumstances including the causing of injury to Mr Shrestra and the false imprisonment, so I take those into account not as separate offences, but as surrounding and relevant circumstances in the context of the armed robbery.
16 You, Mr Glouftis, have also pleaded guilty to possession of the ketamine, as it is now ascertained to be, and possession of the cannabis.
17 As I have already noted each of you was impaired by drugs at the time of your arrest. Your counsel advised that both of you instructed you had no memory of the events, but that you accepted you must have acted as the complainant says you did and that is the basis upon which your pleas of guilty were entered.
18 Given your behaviour when the police attended at the flat and the responses that each of you made when interviewed, in particular the assertions made by each of you that you saw no injuries on Mr Shrestra, I do not accept that you were so impaired as to be unable to remember the events.
19 You maintained that you did not know Mr Shrestra and that each of you went to the flat to buy drugs. Although you, Mr Glouftis, say that Mr Shrestra was knocking at the door at the time that you arrived and gained entry to the flat and you, Mr McDonald, say that he was already inside Mr Shrestra has said that he was waiting outside while his friend went in. Whether he was outside or inside is really not to the point. He was unknown to you and minding his own business. This then is a random, unprovoked, gratuitous attack on a person unknown to you for, at most, petty gain; his watch, his telephone and his wallet.
20 The offence has features which places instance of armed robbery well above the lowest level: there were two of you attacking one victim; each of you was armed and he was not; the weapons were not just displayed they were wielded close to Mr Shrestra in a frightening and threatening manner; actual force was used and injuries were inflicted on Mr Shrestra as a direct result of the use of force.
21 The need for a sentence which denounces such conduct and imposes just punishment is clear. So to is the need to reflect deterrence, both general and specific. People must be left in no doubt that such wanton and gratuitous acts of violence, with weapons and where the assailants outnumber the victim will be punished.
22 You are entitled to a reduction in the sentence otherwise to be imposed by reason of your guilty pleas. The cost and time of a trial has been avoided. Mr Shrestra has been spared having to give evidence although the timing of the pleas means that the cost of preparation of trial was not avoided and the victim, although spared giving evidence, had had to prepare for the prospect of doing so.
23 I am not satisfied on the materials before me that your pleas of guilty indicate remorse. In my view they represent no more than a belated acceptance of the likelihood of conviction once it was apparent the victim was ready to proceed. He had already shown his preparedness to participate in proceedings against you. He had made a sworn statement on the day and had confirmed its truthfulness at committal.
24 You were then in a position to assess his likely truthfulness and credibility. The only difference between the position at the time of committal and trial is the confirmation at the stage of trial that the complainant was still prepared to go through with giving evidence against you.
25 The case against you was strong. You and Mr Shrestra were the only people in the flat when the police arrived. They had gone there in response to an emergency call asserting that a person was being assaulted and held against his will in the flat. That is what the victim told the police had happened to him as soon as he could speak to them in your absence.
26 Mr Shrestra's account was confirmed by a number of pieces of evidence. He was injured and the injuries were consistent with his account of what had happened. Weapons matching the description of the weapons he described being threatened with were found in the flat. He said he had been divested of his wallet and his phone, they too were found in the flat and, you, Mr McDonald, were wearing his watch as well as your own when arrested.
27 Having said that about the strength of the case against you I consider in a case involving personal violence that a plea which spares the victim giving evidence entitles the offenders to a greater reduction in sentence than a late plea would otherwise justify.
28 Each of you has a long history of drug abuse. Your impairment by drugs on this occasion is no mitigator. Each of you has an extensive criminal history.
29 You, Mr McDonald, have approximately 350 convictions amassed over a period of about 11 years between April 1991 and December 2011. All of your appearances up till now have been in the Magistrates' Court save for three appearances in the County Court where you were appealing sentences imposed by the Magistrates' Court. The offences cover a wide range of offending; dishonesty, violence, property offences, firearms and weapons offences, drug offences, traffic offences and breach offences. On 22 occasions you have been sentenced to terms of imprisonment including one suspended sentence and one intensive corrections order. You have no previous convictions for armed robbery and the longest sentence that you have received has been a sentence of three years imprisonment with a nonparole period of 18 months imposed in August 2001.
30 You, Mr Glouftis, have a significant but lesser criminal history. Over a period of 16 years between 1994 and 2010 you have amassed approximately 90 convictions. You too have had all your matters dealt with in the Magistrates' Court and have appealed on one occasion to the County Court. Your offences cover dishonesty offences, property offences, firearms offences, drug offences, traffic offences and breach offences. You have been sentenced to terms of imprisonment on seven occasions; two of those initially being suspended terms which were then activated following breach. You too have no previous conviction for armed robbery.
31 Each of you has had rehabilitative sentences, as well as punitive ones, and although neither of you has a conviction for armed robbery, as this summary I have given details, the convictions span a wide range of criminal offending behaviour.
32 You, Mr McDonald, have a previous conviction for robbery and assault and weapons offences.
33 For each of you your history show a persistent pattern of breaking the law, of doing what you want when you want, without regard to the law or to the rights of others and this offending represents an escalation in your criminal behaviour for each of you.
34 Attempts, whether through sentencing or otherwise, to rehabilitate you have been futile. The attempts to hold you accountable by charge, conviction and sentence have clearly not deterred you from continuing to offend.
35 You are both old enough to know better and to make conscious choices about your behaviour. You, Mr Glouftis, are now 38 and you, Mr McDonald, 35. You do not have the immaturity of youth and the desirability of encouraging rehabilitation in a young offender before his pattern of criminal behaviour becomes entrenched to call in aid.
36 You, Mr McDonald, have spent only eight months in the past 10 years in the community; that is most of your adult life has been spent in custody, a true waste of young adulthood.
37 You, Mr Glouftis, have spent more time in the community than in custody but you too have wasted a considerable amount of your young adulthood and now into your maturing years in custody. It is a waste for both of you because you are clearly intelligent and able and otherwise capable men.
38 You, Mr Glouftis, were at the very end, on the last day of a nine month parole period and, you, Mr McDonald, had been relatively recently released from your latest term of imprisonment and you were on the bail, CISP bail, at the time. That means that for each of you specific deterrence clearly needs to be given considerable weight.
39 There is a presumption in favour of cumulation with other sentences in respect of each of you. For you, Mr Glouftis, that is largely academic as you had only one day of parole to run. For you, Mr McDonald, you are not currently serving another sentence, but since being remanded in custody in respect of this offence you have served a nine month sentence for the offences you were on bail for at the time of commission of this offence. That means that although you and Mr Glouftis have both been in custody since your arrest for this offence you have served nine months less of pre-sentence detention which by law can be reckoned as part of the sentence already served than Mr Glouftis has.
40 I accept that I can take into account in a general way the time that you have spent in custody since your remand for this offence, but which is not counted as pre-sentence detention. However it is important to bear in mind it is not counted as pre-sentence detention for this offence for a very good reason; you were serving sentences for unrelated matters.
41 In my view the correct approach is to consider the extent to which I would have considered it appropriate to cumulate the sentence for this offence on the sentences for the offences that you were on bail for at the time of the commission of this offence and then to reduce or adjust this sentence to ensure that you serve no more in total for those offences and this one than you would have had you been sentenced for all offences at the one time. That is my understanding of the effects of the cases that were cited to me by counsel, namely Wheldon v. The Queen [2011] VSCA 83 and El‑Waly v. The Queen [2012] VSCA 184.
42 The nine month sentence that you served whilst also remanded for this was imposed for three separate lots of offending. Extracts of the orders of the Magistrates' Court were provided to me. The first episode of offending occurred on 21 December 2010. As a result you pleaded guilty to one charge of car theft and one of attempted car theft and one each of burglary and theft and shop steal and one of possession of a controlled weapon. You received an aggregate sentence of six months for these offences. It was in respect of those offences that you were on CISP bail.
43 About nine months later in the space of six days in September 2011 you were charged with offences arising out of two separate incidents. You pleaded guilty to a charge of handling stolen goods and possession of explosives (firecrackers) committed on 19 September 2011 and to charges of possession of a weapon and possession of cannabis, car theft and driving offences committed on 25 September 2011. For those offences you were sentenced to an aggregate sentence of three months imprisonment which was directed to be served wholly cumulatively upon the sentence imposed for the December 2010 offences.
44 Some of the later offences, those committed in September 2011, were not punishable by imprisonment and fines or other non custodial orders were made in respect of them.
45 It is clear that the learned sentencing Magistrate did not consider that the presumption in favour of cumulation in respect of the offences committed on the two occasions in September 2011 whilst on CISP bail in respect to the 2010 offences was displaced.
46 This offence represents the third episode of offending in 10 days. It occurred just four days after the last of these other September charges that I have just referred to and when you had again been rereleased on bail. You could have been under no misapprehension about the consequences of further offending whilst on bail.
47 In my view neither the circumstances of this offending nor totality considerations justify moderating the sentence for this offence to take into account the time you have spent serving the sentences imposed for the other offences. As Ms Coghlan pointed out this represented escalating offending by you and it is significant and serious that on two of the three occasions in respect of which you were on bail at the time of the time of the commission of this offence you were charged with possession of a weapon.
48 Each of you has considerable family support and that continues despite your history of repeated offending. You, Mr McDonald, were supported by your mother and grandmother at court. Mr Glouftis, your family were not at court, but your parents have continued to provide support to you and to the daughter for whom you are responsible when you are not in custody and for whom otherwise your parents assume responsibility.
49 If you are willing to take advantage of the support your families offer you have emotional support, financial support and accommodation with your families available to you on release. You each have skills that would make you employable.
50 Mr Regan relied on a neuropsychological report from Ms Jane Lofthouse. It was based on an assessment of you, Mr McDonald, conducted whilst you were on CISP bail. Ms Lofthouse concluded that your premorbid intellectual functioning was likely to have fallen between the average and low average ranges, but also noted that your verbal skills generally fell below your non verbal skills
51 In her opinion your intellectual deficits most likely resulted from a combination of an acquired brain injury due to your drug use and motor bike accidents. Your comparatively low verbal skills compared to your non verbal skills she thought were possibly due to developmental impairments, although she could make no definitive diagnosis of that on the material and test results available to her. She concluded:
"Whatever the source of Mr McDonald's deficits they are of a significant nature and have most likely placed him at risk of poor problem solving which may have resulted in criminal behaviour and drug use.
Due to the above Mr McDonald will need to be closely monitored and assisted to maintain a stable lifestyle particularly in relation to his drug use. This may be facilitated through him being linked to appropriate disability and/or psychiatric services and through receiving long term case management."
52 Mr Regan made it clear he was not relying on Ms Lofthouse's findings to found a Verdins submission and rightly so. The causal connection is simply not made out. Her conclusions are consistent with the other matters put to me on the plea and which appear obvious from an analysis of your history. Your prospects of rehabilitation are directly linked to your ability to maintain a stable lifestyle free of drugs.
53 Although no psychological reports were tendered in respect of you, Mr Glouftis, it is equally clear that your ability to remain offence free is directly related to your commitment to remaining drug free.
54 The past failure of each of you to take advantage of what your families have had to offer and to address your long term substance abuse leads to the conclusion that your prospects for rehabilitation must be regarded as poor.
55 The pleas were directed to the imposition of merciful sentences which provided hope for the future and assistance by way of parole supervision on release.
56 In my view the best hope of deterring each of you from further offending and so protecting the community and of assisting or encouraging your rehabilitation is through the prospect of parole. That should offer you the opportunity to work towards release on parole and to accept the supervision and support that parole can offer to keep you substance free and offence free on parole and beyond.
57 Ms Coghlan submitted that a range of between three and a half and four and a half years as the head sentence with a nonparole period of between two and a half and three and a half years was appropriate.
58 Mr Guggenheimer submitted that a head sentence of three years with a 12 month nonparole period was merciful and reasonable. Mr Regan adopted Mr Guggenheimer's head sentence submission and submitted a nonparole period of up to 50 per cent of the head sentence was appropriate in the circumstances.
59 For the reasons I have given I do not consider that this is a low end of the range armed robbery and that your personal circumstances do not justify a lower end of the range sentence. I consider you should be given every opportunity to benefit from parole, but I do not consider having regard to your past failures to comply with conditional court or parole orders that a significant gap between the head sentence and the nonparole period is justified.
60 Despite the difference in your previous convictions I have also considered that given the equal roles played by you in the offending that considerations of parity apply, so that the same sentence should be imposed on each of you for this offending; as I have noted this represented an escalation for each of you. Although your previous convictions are much more extensive, Mr McDonald, many of them are in relation to driving offences there is no proper basis in my view for distinguishing between the two of you in terms of the sentence itself.
61 Mr McDonald, on the one charge 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 direct that you serve a period of two years and nine months before being eligible for parole.
62 I declare that you have spent 188 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
63 I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of five years and I would have fixed a nonparole period of four years.
64 I have been asked to make an order for a forensic sample and I am satisfied on the material before me that there is no sample on the database and that there is no record of any other order against you directing that. I therefore propose to make it having regard to the seriousness of the offence and to your history, noting that it is either consented to or not opposed.
65 I must warn you that I am making the order in relation to that taking of a blood sample by taking it by way of buccal sample or scraping from the mouth. That requires you to rub a swab, like a cotton bud, on the inside of your cheek until a sufficient sample has been provided.
66 I must warn you that if you do not consent or cooperate in the provision of that sample that the police are authorised to use reasonable force to obtain that sample and it is likely, may be highly likely, that they will use the more invasive method of obtaining a sample, namely the taking of a blood sample. Do you understand that?
67 PRISONER McDONALD: Yes, I do, Your Honour.
68 HER HONOUR: Thank you. Are they all the orders that need to be made for Mr McDonald?
69 MS COGHLAN: Yes, Your Honour.
70 HER HONOUR: Everything correct?
71 MR REGAN: Yes, Your Honour.
72 HER HONOUR: Thank you. Can you remove Mr McDonald please.
73 Mr Glouftis, on the three charges to which you pleaded guilty you are convicted. On the charge of armed robbery you are sentenced to be imprisoned for a period of four years. On Charge 2, possession of ketamine, you are sentenced to be imprisoned for a period of one month. On the charge of possession of cannabis you are fined $500. That makes a total effective sentence of four years and I fix a period of two years and nine months as the period that you must serve before being eligible for parole.
74 I declare that you have spent 406 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
75 Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of five years imprisonment and I would have fixed a nonparole period of four years.
76 I make the disposal order sought in respect of the drugs and the knives and I make a forensic sample order in respect of you also. Again being satisfied that there is no sample on the database and there is no order in existence or on record for you to provide a sample.
77 As with Mr McDonald, so with you, I direct that sample be taken by the provision of a scraping from the mouth, a buccal sample, and I must warn you that if you do not consent to or cooperate in the provision of that buccal sample that the police may use reasonable force to obtain that sample and it is likely, may be highly likely, that the more invasive means of taking it, namely a blood sample, will be used. Do you understand that?
78 PRISONER GLOUFTIS: Yes.
79 HER HONOUR: Are they all the orders that are required to be made for Mr Glouftis?
80 MS COGHLAN: Yes, Your Honour.
81 HER HONOUR: Arithmetic correct?
82 MR GUGGENHEIMER: Yes, Your Honour.
83 HER HONOUR: Thank you.
84 PRISONER GLOUFTIS: Your Honour, can I get - I need the - my medication at the gaol is hard to get, so I need - I was on Valium and Mogadon outside for anxiety and panics and it's sort a hard to get - I need - can I get a court order to be put back on it?
85 HER HONOUR: I cannot make a court order, Mr Glouftis, but I will certainly make a recommendation that you be assessed as a matter of urgency in relation to your needs for medication and I will ask Mr Guggenheimer to speak to the prison authorities now before you are removed to gaol to see what he can do to assist and facilitate in that. I will ask Mr Guggenheimer to ask his instructing solicitors to also make sure urgent representations are made to Justice Health to ensure that you get access to medical assessment and treatment as you need.
86 PRISONER GLOUFTIS: Yeah, thank you.
87 MR GUGGENHEIMER: I will do that, Your Honour.
88 HER HONOUR: You will do that, Mr Guggenheimer?
89 MR GUGGENHEIMER: Yes, Your Honour.
90 HER HONOUR: Yes, thank you. Do you have time to go down to the cells before you are due elsewhere?
91 MR GUGGENHEIMER: Your Honour, I do but I have got an appeal before Judge Chettle at 10.00, but I have indicated to Mr Glouftis as soon as that is completed I will go down and speak to him about all matters.
92 HER HONOUR: In that case I direct that Mr Glouftis not be removed from the cells here until Mr Guggenheimer has seen him later today.
93 MR GUGGENHEIMER: Thank you, Your Honour.
94 HER HONOUR: Thank you. Could you now remove Mr Glouftis please.
95 MR GUGGENHEIMER: Thank you, Your Honour.
96 HER HONOUR: Just bear with me while I sign the balance of the orders. Sorry, Mr Guggenheimer, what was the other medication; Valium and what? Mogadon?
97 MR GUGGENHEIMER: As I understood it he was on Methadone at the moment, but I will go and discuss those matters with him, Your Honour.
98 HER HONOUR: Yes, all right. I just want to make a note on the gaol order that he be urgently assessed for need for any further medication.
99 MR GUGGENHEIMER: Certainly I heard the word Valium but I wasn't sure what the second word was, Your Honour.
100 HER HONOUR: Yes, all right, I will not specify the medication then. I will just specify that the should be assessed.
101 MR GUGGENHEIMER: Thank you, Your Honour.
102 HER HONOUR: That is the orders signed. Thank you.
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