Director of Public Prosecutions v Goldsmith

[2012] VCC 1564

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

AT MILDURA

CRIMINAL DIVISION

Case No. CR-12-00717

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY ALAN GOLDSMITH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Mildura
DATE OF HEARING:	9 October 2012
DATE OF SENTENCE:	9 October 2012
CASE MAY BE CITED AS:	DPP v Goldsmith
MEDIUM NEUTRAL CITATION:	[2019] VCC 1564

REASONS FOR SENTENCE

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Catchwords:            PG to armed robbery x 1, theft x 1; long-term poly-drug user aged 29; background of family dysfunction & limited education; absent father and abusive stepfather;  positive signs of rehabilitation; insight into link between drugs and offending; close family support; victim was soft target, alone in store, threatened with knife; TES 3 years, npp 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. D. O'Doherty
For the Accused	Mr I. Polak

HER HONOUR:

1       Jeffrey Alan Goldsmith, you have pleaded guilty to one charge of armed robbery and one charge of theft. 

2       You committed the theft offence on 16 January 2012 at the San Mateo Cellars liquor store in Mildura when you took a carton of bourbon and left without paying.  It was valued at $105. 

3       The next day you went to a convenience store, Cappy's Store, also in Mildura.  You went there armed with a large kitchen knife and you used it to threaten the store proprietor, Mary Ellis, who was serving customers that afternoon.  You waited until all customers had left and then you entered the store and approached the cash register demanding that you be given $200.  Ms Ellis pressed the duress button and tried to stall you, whereupon you became anxious and produced the knife from under your shirt.  You pointed the knife at her and said again, "Give me the money.  I need $200."  She started to count out the $20 notes and you grabbed them and some $10 notes, saying, "Give it all to me."  You kept the knife in your hand throughout.  You then ran from the store.  The knife was later found in a rubbish bin.

4       

When interviewed by police, you admitted to having stolen alcohol from San Mateo Cellars on 16 January and that you drank it.  You also admitted to having committed the armed robbery at Cappy's Store.  You said you did it on the spur of the moment to get drugs which you then bought.  You were

co-operative with the police and answered all their questions.

5       You pleaded guilty at the committal hearing which proceeded by way of straight hand-up brief.  You are entitled to a discount for that as it has saved the expense and inconvenience of a trial and has avoided the need for witnesses to have to give evidence.  You have remained in custody since your arrest for a period of 264 days not including today.

6       You are a 29 year old single man and a few weeks before your arrest you had been living for a short time with your mother and sister in Nhill.  You have been a cannabis user since the age of 15, and by 19 you were using heroin as well.  Your education was limited to Year 8 level due to your family's frequent changes of address.  You never knew your father, and your mother remarried a man who was ultimately gaoled for the sexual abuse of your sister.  He also abused you physically as a child.

7       After leaving school you worked for a few years in unskilled jobs and settled in Churchill with your partner Rachel.  That relationship ended after three years owing to drug use on the part of both of you and it was then that your family took you in at Nhill.  You have extended family there also and you hope to be able to live there after your release and take part in drug rehabilitation there.

8       According to the psychologist, Mr Cummins, who assessed you recently, you do have some insight into the causes of your drug abuse, that it stems from the anger you feel towards your stepfather.  In turn, you also understand the link between this and your offending and you now want to leave that life behind you. 

9       Armed robbery is a very serious offence, as is theft.  The legislature provides for a very long maximum penalty of 25 years' imprisonment for armed robbery and ten years for theft, so it is clear how seriously these crimes are regarded.

10      The victim of the robbery, Ms Ellis, was what is often called a soft target, a person working alone and therefore vulnerable to this type of cowardly attack.  She has provided a victim impact statement in which she states how much the crime has affected her day-to-day life, making her anxious and worried, wondering what could have happened if things had turned out differently.  She is clearly a person who reflects on things, and she states that she would hate for you to do something similar to someone else and she would like you to learn from your mistakes. 

11      This crime calls for a sentence of imprisonment that deters others from offending in that way and that sends a message that such criminal acts will be severely dealt with by the courts.  In your case there are some mitigating factors which I take into account, and I have already mentioned the discount for your early plea of guilty. 

12      In his report Mr Cummins diagnosed an adjustment disorder connected with your turbulent early home life and a probable post traumatic stress disorder resulting from this background together with your sister's disclosures of sexual abuse by your stepfather.  Mr Cummins considers you need psychological treatment as well as, ideally, residential drug treatment and that you are well disposed to taking on such treatment. 

13      That leads me to a second mitigating factor, your prospects for rehabilitation.  Your plea of guilty is the first step towards that, because you acknowledge the crime as having been your responsibility and I can infer from it some degree of remorse. 

14      Getting older and becoming more mature is often an indication that efforts towards rehabilitation have a greater chance of success.  After having had a very poor relationship with your mother leading to the need for her to take out an intervention order against you, it seems that that has improved and she is now prepared to have you live with her together with your sister and her son in Nhill. 

15      Your criminal history, beginning at the age of about 18, is a litany of relatively minor crime but it is clear that your activities have been from time to time a considerable source of nuisance, damage and threat in the community.  The only conviction for assault involved a verbal assault and therefore the charge of armed robbery is the first time you have been charged with a crime of violence, representing an escalation in your offending.  It was committed at a time when you were effectively, albeit briefly, homeless and you were using drugs and alcohol in the context of an aimless lifestyle.

16      Apart from having been prescribed antidepressant medication at one stage, you have never been adequately treated for depression and it would seem that there is a need for that.  Whilst in prison you have remained drug-free and you look forward to being able to consolidate that when you are released.  Because of the seriousness of this crime, that day will be some time off yet.

17      Your counsel, Mr Polak, has urged me to consider that you have now served sufficient time.  Apart from the matters to which I have already referred, he added that the crimes were unplanned and performed in an unprofessional way.  The fact that a kitchen knife was used diminishes the force of that submission, although I accept that there were no other indications of planning or sophistication.

18      As far as sentence goes, Mr O'Doherty, for the prosecution, has put a contrary view that a head sentence in the range of three to four years is appropriate with a minimum period to be served of between 18 and 24 months.

19      As a 20 year old in 2004 you received a substantial prison term of 18 months for what appears to have been a consolidation of offences involving theft of cars and theft from cars.  This was your first time in prison.  A non-parole period of ten months was fixed and a few months later you were again convicted in the Magistrates' Court of criminal damage and other charges resulting in a two month sentence cumulative upon the one you were already serving. 

20      I have set this out in some detail because after a gap of a few years you continued to offend in similar ways and so your history suggests that a prison term at that young age deterred you only temporarily and did not address what may have been the reasons for your offending. 

21      Incarceration may well be a blunt instrument in bringing about rehabilitation, but it does seem that your recent experience has had some benefits for you by your own admission.  However, the eight and a half months you have served is not a sufficient period to satisfy all sentencing needs in this case.  General deterrence is a very important factor to be addressed, although as to specific deterrence, your particular circumstances warrant some leniency for the reasons I have already given, not least of which is your motivation to put aside drug use and to live a different life.

22      Ultimately the nature of this armed robbery on a shopkeeper working alone and subjected to the threat of a knife calls for a more severe penalty than the time served in this case.

23      Would you stand now, please, Mr Goldsmith?

24      I sentence you to two years and nine months' imprisonment for the charge of armed robbery and six months for the charge of theft.  Three months of that sentence are to be served in cumulation upon the first sentence, resulting in a total effective sentence of three years.  I order that you serve 18 months before being eligible for parole.  That provides for a long parole period to enable you to take advantage of the opportunity for drug rehabilitation which hopefully will be available for you.

25 The prosecution seeks an order for the disposal of items and also an order under s.464 of the Crimes Act for a forensic sample of saliva to be obtained from you. Those orders are not opposed by you and I make the orders, and I must advise you that the police do have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.

26      You have spent 264 days in custody until today, and I declare that time to be already served and I shall cause that to be noted on the court record.

27      If you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment with a minimum period of two years and six months to be served. 

28      Are there any other matters that I have omitted, Mr O'Doherty?

29      MR O'DOHERTY:  No, Your Honour.

30      HER HONOUR:  Mr Polak?

31      MR POLAK:  No, I don't believe so.

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