Director of Public Prosecutions v Grech
[2019] VCC 1059
•12 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00036
Indictment No. J12032775
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GUY GRECH |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 15 May 2019 | |
DATE OF SENTENCE: | 12 July 2019 | |
CASE MAY BE CITED AS: | DPP v Grech | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1059 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – two charges of theft, one charge of robbery and one uplifted charge of driving a motor vehicle during a period of disqualification
Legislation Cited: Crimes Act 1958, s74(1); s75; Road Safety Act 1986, s30(1); Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited: Phillips v R [2012] VSCA 140)
Sentence: Total effective sentence 3 years 6 months imprisonment with a non-parole period of 2 years; 344 days pre-sentence detention reckoned as time served; Forensic sample order; disposal order; compensation order.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A.Keath | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J McGarvie | Stary Norton Halphen |
HIS HONOUR:
1 Guy Grech, on 15 May 2019, you pleaded guilty to the following offences on Indictment No J12032775:
Charge 1
That you at Tullamarine in Victoria on 29 June 2018 stole registration plates belonging to Damien Hodder.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum sentence of 10 years’ imprisonment.
Charge 2
That you at St Albans in Victoria on 29 June 2018 robbed Aaquib Ali of a Samsung Galaxy S7 Edge mobile phone and certain money.
The offence of robbery is contrary to s75 of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.
Charge 3
That you at Ardeer in Victoria on 29 June 2018 stole petrol belonging to Coles Supermarkets Australia Pty Ltd.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment
2 One summary charge was transferred to this Court pursuant to s145 of the Criminal Procedure Act. On 15 May 2019, you also pleaded guilty to the following offence:
Charge 11
That you at St Albans on 29 June 2018 did drive a motor vehicle on a highway, namely Sunshine Avenue, during a period of disqualification from obtaining an authorisation to drive a motor vehicle.
Such offence is contrary to s30(1) of the Road Safety Act 1986 and carries a maximum penalty of two years’ imprisonment or 240 penalty units.
3 I note that there are no mandatory licence orders arising from the offending, but pursuant to s28(1)(b) of the Road Safety Act 1986, the Court may suspend for such time as it thinks fit or cancel any driver licences or learner permits held by that person and, whether or not that person holds a driver licence or learner permit, disqualify that person from obtaining a driver licence or a learner permit for such time (if any) as the Court thinks fit.
The circumstances of the offending
4 Counsel for the prosecution tendered a document headed “Prosecution Summary dated 10 April 2019” (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
· You are presently thirty years old, having been born on 14 June 1989. At the time of the offending, you were twenty-nine years old.
· The victim of the robbery (Charge 2 – robbery) is Aaquib Ali who, at the time of your offending, was twenty-five years old and worked as a taxidriver, usually from Wednesday to Sunday, 4pm to 4am.
· At the time of the offending, you and Mr Ali were unknown to each other.
· On 28 June 2018, Damien Hodder was driving along Keilor Park Drive, Tullamarine, when his vehicle, a 2005 blue Holden ute, registration WEC‑538, broke down causing him to leave the car parked near 100 Keilor Road in order to get it towed.
· In the early hours of the 29 June 2018, you were driving a silver Holden station wagon, registration SPZ‑704, in the Tullamarine area when you saw the broken down ute on the side of the road. You removed the number plates and put them on your station wagon “so [he] could do a fuel runner ’because you had no money or fuel”. (Charge 1 – theft)
· You then drove to a Caltex petrol station in Kealba. At that time, Mr Ali was working his regular shift as a taxi driver and, at about 3.30am, he arranged with his day-shift driver to change over shifts at 4am at a house on Blendon Avenue, St Albans. On the way to the changeover, Mr Ali stopped at the Caltex petrol station to refuel the taxi and, during that time, you arrived driving the silver Holden station wagon with the stolen number plates affixed.
· Whilst you were paying for your petrol, you saw Mr Ali paying for the petrol for his taxi, putting a number of $50 notes into his wallet. You decided that Mr Ali would be an “easy target”.
· Mr Ali drove to Blendon Avenue for the shift changeover with you following him from the service station. You pulled up four to five houses back from where Mr Ali parked the taxi and, as Mr Ali was packing up his belongings for the changeover, you approached the driver’s side of the taxi.
· You were wearing a balaclava and motorcycle gloves as well as a high‑vis, zip‑up jacket. You had changed your clothing to look different in appearance from when you were at the petrol station.
· Without saying anything, you punched the driver’s side window, which left a small crack, then continued punching it causing it to shatter. Mr Ali offered you his mobile phone because he ‘knew [that you] was doing this to take things from [him]’. You took the phone and demanded Mr Ali’s wallet and removed all the cash from the wallet – approximately $500. (Charge 2 – robbery)
· You told Mr Ali to drive away and not look back, which he did before doing a U‑turn and driving back to the address of his day-shift driver and telling him what happened.
· Shortly after 4am, you arrived at the Coles Express petrol station, Ardeer, driving the silver station wagon. You filled the car with unleaded petrol to the value of $91.56 and drove off without paying. (Charge 3 – theft)
· CCTV footage showed you filling the car with petrol, still wearing the high‑vis, zip‑up jacket with the hood pulled up so that your face was not visible.
· The petrol attendant working at that time reported the petrol drive-off to police.
· On 29 June 2018, you were unlicensed, having been disqualified from obtaining a licence by the Sunshine Magistrates’ Court on 20 November 2015 for a period of three years, commencing on 14 September 2016.
5 On 1 July 2018, you were pulled over by police, executing an illegal U‑turn when driving the silver Holden station wagon. It was ascertained that you were driving whilst disqualified. (Related Summary Offence – drive whilst disqualified) The car was impounded and searched, and various materials were found consistent with the car being seen in CCTV footage from 28 June 2015. Furthermore, a search warrant was executed at your home address and clothing was found, matching that worn during the offending.
6 You attended the Melton Police Station on 2 August 2018 and were then transferred to Sunshine Police Station for interview. During the interview, you denied the offending, telling police ‘I know [taxis are] fitted with cameras and everything else, I – why would – why would I try to rob one?’
7 At the conclusion of the interview, in conversation with the informant and the corroborator, you made admissions in relation to the robbery and theft of petrol. The interview was resumed and you made frank admissions to the offending.
8 Counsel for the prosecution noted that the matter was resolved at a committal hearing on 11 January 2019 when you indicated that you would plead guilty to the indictable offences. Counsel for the prosecution accepted that such plea was at the ‘earliest opportunity’.
9 You were remanded as from 2 August 2018 and, as at the plea hearing, you had spent 286 days by way of pre-sentence detention, excluding the date of the plea.
10 The prosecution also seeks that the following orders be made:
(a)That a forensic sample be obtained from you pursuant to s464ZF(2) of the Crimes Act 1958;
(b)A Disposal Order in respect of the items of clothing seized;
(c)A Compensation Order in the sum of $312 for the broken car window.
Your counsel did not consent to the forensic sample, nor the Disposal Order, but I consider that both orders are appropriate in all the circumstances.
The Victim Impact Statement
11 Counsel for the prosecution tendered the Victim Impact Statement of Mr Ali, dated 14 May 2019 (Exhibit 3). In that Statement, Mr Ali describes that when the offending initially occurred he was ‘shocked and scared’, noting that he had never faced anything like that before in his whole life. In particular, he records that when you smashed the window of the taxi he went ‘blind for a few seconds’ and that event was ‘very terrifying’.
12 Mr Ali notes:
‘Such incidents follow you for the rest of your life. One remains in the shadows of those moments for a long time. A constant fear of insecurity overcomes one’s thinking after bad incidents.’
13 Mr Ali amplifies these comments by noting that he felt ‘helpless’ at that time, realising that you could have done anything to him at that time.
14 Mr Ali also describes that being at home is ‘just alright’, although when he is alone he becomes a bit afraid. At work, being a taxidriver he usually performs night shifts, and if anyone is sitting right behind his driving seat he has a fear that that person can hurt him at any time. He notes that he is improving with the assistance of friends.
Your criminal record
15 Counsel for the prosecution tendered your criminal record dated 15 April 2019 (Exhibit 2). Such record is reasonably extensive, commencing on 27 November 2009 when you were 20 years old and continuing over the years up to 30 June 2017. Much of the original offending is motor vehicle related, although in later years, there has been offending in relation to possession and trafficking of certain drugs. Furthermore, there are a number of offences involving dishonesty and some offences involving violence.
16 In particular, I refer to the following and where appropriate I have emphasised past similar offending:
(a)On 27 November 2009, at the Bacchus Marsh Magistrates’ Court, you were convicted of, and I emphasis fraudulently using number plates, failing to carry a learner permit and using an unregistered motor vehicle, and was fined an aggregate sum of $700;
(b)On 3 June 2010, at the Sunshine Magistrates’ Court, you were found guilty of a number of offences including and I emphasis theft, burglary, driving whilst disqualified, intentionally destroying property and going equipped to steal or cheat. Without conviction, you were sentenced to a Community Based Order for 12 months, with special conditions to perform 50 hours of unpaid community work and to participate in various programs to minimise reoffending;
On 1 October 2010, at the Bacchus Marsh Magistrates’ Court, such order was varied to delete the requirement that you perform unpaid community work;
(c)On 6 May 2011, at the Sunshine Magistrates’ Court, you were convicted of careless driving and improper use of a vehicle, and were fined an aggregate sum of $400 together with your driver licence being suspended for a period of three months;
(d)On 3 November 2011, you were convicted of various motor vehicle offences including driving whilst disqualified, using an unregistered motor vehicle on a highway, vehicle failing to display a number plate, unlicensed driving, drive while authorisation suspended and exceeding various speed limits. You were convicted and sentenced to a Community Based Order for 12 months, which had conditions for assessment and treatment of alcohol/drug addiction and medical/psychological/psychiatric assessment and treatment.
On the same day, it was proven that you had failed to comply with the Community Based Order made on 1 October 2010 and, without conviction on those offences involved in the order, you were placed on another Community Based Order for 12 months (see above);
(e)On 16 July 2012, at the Sunshine Magistrates’ Court, you were convicted of driving whilst disqualified and sentenced to two months’ imprisonment, wholly suspended pursuant to the then s27 of the Sentencing Act 1991 for an operational period of 18 months. You were further suspended from driving for six months effective from 6 July 2012;
(f)On 11 September 2012, you were convicted of burglary and theft with the matter being adjourned to 10 September 2013 and you being ordered to pay various restitution amounts;
(g)On 19 October 2012, at the Bacchus Marsh Magistrates’ Court, you were convicted of driving whilst disqualified, driving a vehicle displaying a number plate other than the one issued, using an unregistered motor vehicle on a highway and failing to wear an appropriately adjusted seatbelt. You were sentenced to four months’ imprisonment.
On the same day, it was proven that you had breached the Community Based Order made on 3 November 2011 and, in relation to those offences, you were convicted and placed on a Community Based Order for 12 months, commencing on 3 November 2011, with special conditions to undergo assessment and treatment for alcohol/drug addiction, also submit to medical psychological assessment and treatment, o be under supervision;
(h)On 23 November 2012, at the Ballarat County Court, you were convicted of driving whilst disqualified and using a vehicle displaying number plates other than those issued, using an unregistered motor vehicle on a highway and failing to wear a properly adjusted seatbelt. This matter was an appeal from the Magistrates’ Court matter on the
19 October 2012. You were sentenced to an aggregate six months’ imprisonment, of which 170 days sentence was suspended under the then s27 of the Corrections Act 1991, with an operative period of two years. At that time, all licences were disqualified for 12 months from 23 November 2012 and you were fined an aggregate $500;
(i)Over the year 2013, you were again convicted of various motor-vehicle-related offences and were ordered to pay various fines. In particular, you were convicted of and I emphasis fraudulently using number plates on three occasions and also of careless driving and improper use of a vehicle.
(j)On 20 November 2015 at Sunshine Magistrates’ Court, you were convicted of two charges of dangerous driving while pursued by police, eleven charges of driving while authorisation suspended, five charges involving theft of a motor vehicle and firearm offences. You were convicted and sentenced to an aggregate
18 months’ imprisonment and it was declared that you had 241 days’ pre-sentence detention. Your licence was cancelled and disqualified for three years, effective from 14 September 2015.
On that day, you were also convicted of some less serious driving offences, but also theft from a shop, burglary, which I emphasis unlawful assault and various charges of exceeding speed limits. You were convicted and sentenced to a community correction order for
18 months to commence on 14 September 2016, which beyond the normal conditions, had special conditions of performing 150 hours of community work, supervision and treatment/rehabilitation in respect of drugs, mental health and offending behaviour;
(k)On 11 August 2016 at Sunshine Magistrates’ Court, you were convicted of recklessly causing injury and committing an indictable offence whilst on bail and fined the sum of $2,000.
Also on that day, you were convicted of possessing methylamphetamine, cannabis and a prohibited weapon, and fined an aggregate sum of $2,500 for the drug offences and a further $2,500 for the firearm offence;
(l)On 30 June 2017, at the Bacchus Marsh Magistrates’ Court, you were convicted of possessing cannabis, methylamphetamine, a drug of dependence (not named) and trafficking cannabis, and was sentenced to twelve months’ imprisonment, concurrent with other periods of imprisonment. It is noted that you had been held in custody 91 days as pre-sentence detention and there was a non-parole period fixed at six months.
Also on that day, you were convicted of dishonestly and I emphasis this dishonestly undertaking the retention of stolen goods and was also similarly sentenced, as you were for further offences of committing an indictable offence whilst on bail and driving whilst authorisation suspended.
Also on 30 June 2017, it was proven that you had contravened your Community Correction Order made on 20 November 2015, and in relation to the charges pertaining to that order you were resentenced to two months’ imprisonment concurrent with other periods of imprisonment.
Your personal circumstances
17 Your counsel tendered the following documents:
(a)A document headed “Outline of Submissions”, dated 14 May 2019 (Exhibit “A”);
(b)Character references from Mr Colin Brough, dated 15 October 2018 and from Mr Danny Forti, dated 13 May 2018 (Exhibit “B”);
(c)A bundle of certificates of courses concluded while in custody (Exhibit “C”). These consist of various modules towards a Certificate II in Engineering performed over the years 2017, 2018 and 2019; a certificate obtained by you in January 2019 on completion of the course “Tuning into Respectful Relationships” and a Certificate of Completion dated 14 November 2018 in respect to alcohol and drugs;
(d)Reports from the psychologists, Ms Dytechenka, dated 3 March 1999 and Mr Malcolm Garnett, dated 18 July 2002 (Exhibit “D”).
18 Partly based on these documents and partly based on various submissions made by your counsel, I note the following:
·As already recorded, you are presently thirty years of age. You were raised by your mother and stepfather in the Bacchus Marsh area, with two younger stepsisters. Your biological father had died in a motorbike accident when you were young.
·During your primary schooling at the Portland Primary School in Bacchus Marsh, you were referred to the psychologist, Ms L Dytschenko, in March 1999, when you are were about nine and a half, in order to undergo a cognitive assessment. At that time, tests administered by Ms Dytschenko suggested that you had definite learning problems, especially where language was concerned. Ms Dytschenko noted that you may experience difficulties at school with communication and learning and thereafter suffer much frustration in being able to follow instructions, conversations and requests (see report dated 3 March 1991 – exhibit “B”).
·When attending your first year of secondary school at Bacchus Marsh Secondary College, you were referred to another psychologist, Mr Malcolm Garnett, who met you on 4 July 2002, following a number of suspensions from your school due to inappropriate behaviour (see report dated 18 July 2002 – exhibit “B”). At that time, Mr Garnett noted that following the examination by Ms Dytschenko, you did get some help at your primary school with language, but this had not continued in Year 7.
·Mr Garnett performed various tests and noted that the pattern of scores and areas of concern are the same as when you were previously tested, albeit lower. According to Mr Garnett, this suggested that you were not keeping up with your age group in developing new skills and concepts. In particular, Mr Garnett noted that it had been raised in the report of Ms Dytschenko that you may possibly from dyslexia and it was recommended that this be further investigated.
·Mr Garnett also offered the opinion at that time that your ‘behaviour problems’ are likely to be at least in part because of academic failure and inability to express yourself.
·You were asked to leave secondary school in approximately Year 9, and thereafter over a period of four years, you completed a three year roof tiling apprenticeship, after which you performed such work for a period of time and later obtained Certificate of Automotive Engineering which qualified you as a mechanic. Since being in custody, you have also obtained skills in arc welding and metal cutting.
·You have informed your counsel that your literary skills are a problem, but have informed her they are sufficient ‘to get by’.
·You have two children – an eleven-year-old son named Seth, who resides with his mother, and from another relationship, a nine-year-old daughter named Jade, who resides with her mother. Apparently, your son has visited you in custody, but you have not seen your daughter since July 2018. Furthermore, you informed your counsel that each of the relationships with your ex-partners was not ‘particularly good’. One of the ex‑partners has an Intervention Order against you.
·You informed your counsel that you became addicted to methylamphetamine – that is, ‘ice’ – at approximately twenty years of age and were in and out of prison over the next few years.
·In about January 2018, you were paroled for about three months, during which time you were employed as a roof tiler and were living with another ex-partner who, according to you, also had her own issues with drugs.
·You instructed your counsel, and indeed there is some reference in your record of interview, that you relapsed into drug taking due to complications in your life shortly prior to the subject proceeding. At that time, you lost your roof tiling job about one week prior to the subject offending and there was ongoing difficulties with one of your ex-partners.
·In particular, you informed your counsel that you were under the influence of drugs when the offending occurred.
Plea in mitigation
19 Your counsel submits that while a term of imprisonment is conceded, it is still the option of last resort and parsimony requires that the least severe sentence capable of meeting all of the various aims of sentencing be imposed in the case. Furthermore, your counsel conceded, appropriately in my view, that the circumstances of this matter demand that a period of imprisonment should be imposed with a parole period.
20 However, your counsel also submits that the following matters are relevant in mitigation of an appropriate sentence:
(a)The matter resolved on the day of the contested mention when you indicated that you would plead guilty to the offences on the Indictment. Your counsel submitted that such a plea of guilty is of ‘substantial’ objective utility, in that it spared the community the cost of a trial and released the witnesses from the ordeal of giving evidence. Furthermore, it was submitted by your counsel that your plea of guilt is also indicative of you accepting responsibility for the subject offending;
(b)That you made frank admissions during your Record of Interview. Furthermore, your counsel notes that you were cooperative with police throughout the investigation and attended the police station by appointment for interview. Although you initially resisted the evidence, such resistance was “short lived” as you gave frank admissions during the latter part of the Record of Interview;
(c)Although it was conceded by your counsel that your prospects for rehabilitation ought to be ‘guarded’ given your previous criminal record, it was submitted that the following factors are relevant:
(i)you are still supported by your family and will be when you are ultimately released. In this respect I note that both your parents were in court supporting you during the Plea;
(ii)despite periods of imprisonment and substance addiction, you have a solid work history involving roof tiling and mechanic work;
(iii)you have previously benefited from the support available to you on parole after you were paroled in 2016;
(iv)your experience of custody has been contemplative and productive as demonstrated by your completion of several courses.
21 Your counsel also referred me to the various character references (exhibit “B”) made up of the following:
(a)Reference from Mr Colin Brough dated 15 October 2018, wherein he describes you having worked for him in the past as a mobile mechanic due to lack of business in the roof-tiling trade. He describes your time of working with him to be of great value to his business and he has discussed with you the prospect of returning to this type of work in the future;
(b) Reference of Mr Danny Forti, dated 13 May 2018.
22 I also note the various certificates of courses completed by you while in custody, including gas metal arc welding, gas tungsten arc welding, manual heating and thermal cutting. Also, you have completed courses involving “Tuning into Respectful Relationships” and a six-hour program in ‘AOD and Loss’.
23 Your counsel accepts, correctly in my view, that general and specific deterrence, along with just punishment and protection of the community, are all relevant in determining an appropriate sentence. By general deterrence, I mean that in formulating a sentence, the sentence should generally deter other people from committing the subject offences. Furthermore, specific deterrence is also relevant given your lengthy past criminal history, particularly in relation to driving while disqualified and number-plate offences.
The position of the Prosecution
24 Counsel for the prosecution submitted that:
(a)The only appropriate sentence was a sentence of immediate imprisonment with a non-parole period, although he accepted, based on the past experience, there are benefits of a longer period of parole where you will be supervised;
(b)The offence of robbery is a serious offence and there was planning and premeditation in respect of the circumstances surrounding the robbery and the two thefts making up the offences on the Indictment.
Conclusion
25 Over the early hours of 29 June 2018, up to about 4.00am you committed two offences involving theft and one offence involving robbery. Each of the offences had a degree of planning and foresight.
26 Initially, in the early hours of that day, you saw a broken-down ute on the side of the road and removed the number plates of the ute and placed them on your vehicle so you could do ‘a fuel runner’ because you had no money or fuel. (Charge 1 – theft).
27 Shortly after 4.00am, you did enter a petrol station in Ardeer and filled your vehicle to the value of $91.56, after which you drove off without paying. (Charge 3 – theft).
28 However, in-between these two events, you also sighted a taxidriver handling money at another service station, causing you to follow the taxidriver in his vehicle, as you considered he would be an ‘easy target’. After following him from the service station to where the driver, Aaqib Ali, parked his vehicle, waiting to change over with the next driver, you approached that vehicle wearing different clothes to what you had been wearing at the service station where you had first sighted Mr Ali.
29 At that time, without any warning, you punched the driver’s side window of Mr Ali’s vehicle and continued punching it, causing it to shatter. One only has to read the Victim Impact Statement of Mr Ali in which he describes your actions to have been ‘very terrifying’. After the side window was shattered, you took his phone and removed all the cash from his wallet – about $500.
30 At the time of this offending, you had been disqualified from obtaining a licence by the Sunshine Magistrates’ Court on 20 November 2015 for a period of three years, commencing on 14 September 2016.
31 On 1 July 2018, you were pulled over by police for executing an illegal U-turn, and enquiries revealed that you were driving while disqualified. As is made clear by your record, you have been charged many times over the years in relation to such offence, but seemingly, any punishment to date has not deterred you from such offending.
32 Your criminal record also suggests you have been convicted of several offences involving number plates and, again, seemingly, you have not been deterred from performing such activity.
33 I also note that your criminal record has a history of other dishonesty offences, including burglary and theft.
34 Your last recorded offending is in June 2017 but, of course, on 30 June 2017 you were convicted of various drug offences and resentenced for a Contravention of a Community Correction order made on 20 November 2015. At that time you were sentenced to twelve months’ imprisonment, the non-parole period fixed at six months.
35 It was after this period of imprisonment you commenced a period of parole which, according to your counsel, you coped with well until the end of the parole period when you lost your job and you recommenced being involved with drugs and during which time the subject offending occurred.
36 The offence of robbery is a serious offence, as is made clear by the maximum penalty of fifteen years’ imprisonment. Obviously enough, the offence of robbery can occur in a variety of different circumstances. I do consider that your offending was an example of objectively serious offending, bearing in mind that you saw fit to choose a soft target, involving some degree of premeditation after you saw your victim in the service station, you having the to change your clothing from when you were first in the service station to when the robbery was committed to help avoid recognition and the circumstances of the robbery, which were frightening to the victim.
37 I consider that the two offences of theft, although not as serious as the circumstances surrounding the robbery, must be viewed in the context that you do have prior convictions for this type of offending.
38 In relation to the uplifted charge from the Magistrates’ Court, that is, driving a motor vehicle during a period of disqualification, is particularly flagrant offending, bearing in mind the long history of you committing this type of offence. Various penalties ordered against you in the past for this type of offending has had little or no impact of deterring you from such activity.
39 In mitigation, I do accept that notwithstanding your initial reluctance to make frank admissions, you did ultimately make frank admissions during the course of your Record of Interview and pleaded guilty to the offences on the Indictment at the earliest possible opportunity.
40 Such actions have had the utilitarian benefit of saving the community the cost of a trial and, indeed, the victims (in particular, Mr Ali) – not being required to give evidence. It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of the responsibility are to be inferred from a plea of guilty (see Phillips v R [2012] VSCA 140 at paragraph [86]). I consider that there is scant evidence of remorse, although I do accept that generally you have assisted the authorities and, in particular, made frank admissions very early.
41 You are still a relatively young man, but I consider your prospects for rehabilitation to be ‘extremely guarded’ given your criminal record and what I perceive to be no real remorse in respect of the subject offending.
42 However, I do accept that you are still supported by your family and will be when you are ultimately released, and despite periods of imprisonment and substance addiction, you have had a reasonable work history involving work as a roof tiler and a mechanic – in which you have appropriate qualifications in each trade. Furthermore, there is an indication that you could resume work with one of your referees after the completion of any prison sentence.
43 Furthermore, I accept that you have previously benefitted from the support available to you on parole and seemingly you rejoined a partner and worked until parole came to an end, after which you again descended into drug use. Your counsel also submits that your experience since being on remand has been “contemplative and productive”. Seemingly, there is some support for such an assertion, given your involvement in obtaining the various study certificates.
44 I intend to convict you and sentence you to periods of imprisonment on each of the indictable offences and the summary offence which has been uplifted to this Court. In the circumstances of your case, I intend to have a slightly longer period of potential parole to allow you to hopefully make that transition back into the community and resume work in one of the trades in which you are qualified.
45 As I have already recorded in these Reasons, there is a discretionary power under s28(1)(b) of the Road Safety Act 1986 for the power to suspend or cancel any licences you may have and disqualify you for whatever time the Court thinks fit from obtaining a driver licence or learner permit.
46 I note that as the matter now stands, you are disqualified from obtaining a licence for a period commencing on 14 September 2016 for three years.
47 I do not intend to exercise that discretion, as none of the offending involving dangerous or careless driving per se, but only when driving whilst disqualified. Furthermore, I am conscious that when you are released from prison it will be necessary for you to attend jobs either as a roof tiler or indeed work on vehicles as a motor mechanic, both of which seemingly would involve the use of a motor vehicle. To inhibit such activity, in my view, would also inhibit your chances of rehabilitation.
48 However, I am minded to order that a forensic sample be obtained from you pursuant to s464ZF(2) of the Crimes Act 1958, a disposal order in respect of the items of clothing seized, and a compensation order in the sum of $312 for the broken car window. I consider that all such orders are appropriate in the circumstances.
49 Be upstanding please.
(a)In relation to Charge 1 on the Indictment, you are convicted of the offence of theft and are sentenced to a period of four months’ imprisonment;
(b)In relation to Charge 2 on the Indictment, you are convicted of the offence of robbery and are sentenced to two years and eight months’ imprisonment. This is the base sentence;
(c)In relation to Charge 3 on the Indictment, you are convicted of the charge of theft and are sentenced to a period of four months’ imprisonment;
(d)In relation to the uplifted Summary Charge 11, you are convicted and sentenced to ten months’ imprisonment.
I order that two months of the sentence in relation to Charge 1 on the Indictment, two months of the sentence in relation to Charge 3 on the Indictment and six months of the sentence in relation to the uplifted Summary Charge 11 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 2 on the Indictment. The total effective sentence is three years and six months, and I order that there be a non-parole period of two years.
50 I declare that you have spent 344 days in pre-sentence detention in relation to the subject offences and such period is to be administratively deducted from your sentence.
51 I also grant the order sought for the forensic sample, disposal order, and compensation order in the sum of $312 for the broken car window.
52 I declare that save for your pleas of guilty in relation to the offences, I would have ordered a period of imprisonment of four years and six months.
53 Is there anything arising from that Counsel?
54 MR MCGARVIE: No, Your Honour
55 MS KEATH: Your Honour the 464 order is not needed. My understanding is it was automatically retained.
56 HIS HONOUR: Yes, I have been told that through my associate the order is made, it is not an exercised, it is not needed. They’ve already got it.
57 MS KEATH: As the Court pleases, thank you.
58 HIS HONOUR: I think it may have even (indistinct) but that’s the nature of the thing, is it not? I think I have got that right.
59 MS KEATH: That is correct, Your Honour.
---
0